2018 PLP 784 (CLC)

SHAHID KARIM, J.

This is a petition under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") and requires the respondent No.6 Malik Abdul Ghaffar Dogar to show under what authority of law he claims to hold the office of Member of the National Assembly (M.N.A) from N.A

148. The respondent No.6 was declared to be elected by a notification issued by the Election Commission of Pakistan on 5.6.2013, which has been attached with this petition as Annexure 'B'.

2. This order shall also decide connected petition W.P No.I1847 of 2016 which involves identical issues and lays a similar challenge.

3. The respondent No.6 filed nomination papers as a candidate for N.A 148 and in the column relating to educational qualification the following was mentioned:-

4. This, according to the learned counsel for the petitioners, runs counter to the educational qualification which has been reflected in the earlier nomination papers, a reference to which shall be made shortly. The second ground of attack in the petition to the qualification of the respondent No.6 to hold the public office of M.N.A. from N.A.148 is that in the column relating to a declaration whether any criminal cases were pending against the candidate, the respondent No.6 failed to mention the fact regarding criminal proceedings in respect of a criminal complaint which was pending against him and in which he had been declared as absconder on 26.10.2011. These are the twin grounds on the basis of which the petitioner has invited this Court to declare that the respondent No.6 is disqualified from being elected or chosen as a Member of the Majlis-e-Shoora (the Parliament). The provision of law which has been invoked in aid by the learned counsel for the petitioner is Article 62(I)(f) of the Constitution. The said provision of the Constitution is reproduced as under:- "Article 62 (1)(f): he is sagacious, righteous, non profligate, honest and ameen, there being no declaration to the contrary by a court of law."

5. As a prefatory, the facts which have been brought forth by the learned counsel for the petitioner in order to lend support to the submissions made with regard to mis-declaration of educational qualification shall be adverted to. The learned counsel for the petitioner makes a reference to Annexure 'C' which is a copy of the nomination papers which were filed on 20.07.2005 with regard to the Election for Union Council 72, Shah Rukn-e-Alam Town, Multan. In the column relating to the educational qualification, it has been mentioned that:--

6. The documents relating to the respondent's qualification and the degrees obtained from the institutions have also been attached with this petition and which have not been denied by the learned counsel for the respondent No.6. In a nub, the documents mention the respondent No.6 to have obtained the degree in Islamic Studies. The entire controversy revolves around a certificate of equivalence purportedly issued by the Inter Board Committee of Chairmen dated 9.1.2006. The certificate purports to be an equivalence of qualification and according to which the qualification obtained by the respondent No.6 is 'Shahadata Matric in Arabic Language' from Ittehadul Madaris Al-Arabia Pakistan, Jamia Qasamia D.I. Khan in 1997. The equivalence certificate represents the said qualification to be equivalent to Matriculation in Pakistan. This certificate was allegedly issued by Inter Board Committee of Chairmen. The respondent No.6 was elected as the Chairman of U.C.72, Shah Rukn-e-Alam Town, Multan. The election was called in question and a finding was rendered by the Member Election Commission in the following terms:- "

4. Today the petitioner has submitted the original Sanad on the reverse of which an attestation stamps has been affixed by an administrative Officer of the Inter Board Committee of Chairman. This stamp cannot be treated as an equivalence certificate to treat the respondent as a Matriculate. Therefore, in view of the judgment of the Hon'ble Supreme Court of Pakistan dated 16.8.2005 recorded in CPLAs Nos.I569-L, I579-L, I597-L, 1600-L. 1622-L and 1624-L of 2005, it is held that the petitioner was not qualified in terms of the aforesaid provisions to contest the election.

5. Accordingly the seat of Nazim as well as Niab Nazim Union Council No.72, Doomra Tehsil Saddar Multan District Multan are declared to have fallen vacant. The Election Commission may proceed to hold fresh election on the above two seats in due course."

7. A review petition was filed by the respondent No.6 which too was disposed of as under:- "

3. On the last date of hearing learned counsel for the respondents placed on record a letter No.IBCC/D.M/2006-I/4692 dated 16.2.2006 stating that the aforesaid equivalence certificate relied upon by the present petitioners was not issued by the IBCC and, therefore, it was fake.

4. No one for the petitioners has turned up to controvert the said letter dated 16.2.2006 issued by Inter Board Committee of Chairmen. Accordingly, no case for review of the order dated 12.12.2005 is made out. With this the interim relief allowed on 23.12.2005 shall also stand withdrawn."

8. It can be seen from the reading of two orders, reproduced above, that in the order dated 12.12.2005 an original Sanad was produced before the Member Election Commission on the reverse side of which was an attestation stamp sought to be affixed by an administrative officer of the IBCC. It was simply held that the stamp could not be treated as an equivalence certificate to hold the respondent as a Matriculate and, therefore, the Member Election Commission held that the petitioner was not qualified in terms of the provisions of law to contest the election and the seat was declared to be vacant.

9. In the review petition filed by the respondent No.6, the petition was rejected on the ground that an equivalence certificate had been produced and alleged to be issued by IBCC, which was dated 9.1.2006 whereas the IBCC in its letter dated 16.2.2006 had filed a report with the Member Election Commission to the effect that the certificate relied upon by the respondent No.6 was not issued by the IBCC. It was specifically mentioned in paragraph No.4 that none of the petitioners had turned up to controvert the said letter dated 16.2.2006 issued by IBCC and, therefore, no case for review of the order dated 12.12.2005 was made out.

10. As explicated from the documents relating to the order passed by the Member Election Commission and the refusal of the said Member to rely upon the certificate produced by the respondent No.6 as also the denial by the IBCC with regard to the fact that the certificate had been issued by it and that it was a forged document formulates the nub of the argument of the learned counsel for the petitioner with regard to this ground. Precisely, the learned counsel for the petitioner contends that the respondent No.6 ought to be declared as disqualified since he had made a declaration which was contrary to the earlier declaration made in the previous nomination papers as also that he had produced a forged document before the Member Election Commission and thus he was not a Sadiq and Amin within the contemplation of Article 62(1)(f). Firstly, the controversy will have to be seen in its proper perspective. By the mandate of Article 62(1)(f), there has to be a declaration by a court of law with regard to the fact that a person was not sagacious, righteous, non-profligate, honest or ameen in order for a court to hold that a person was not qualified to be elected or chosen as member of Parliament. The question thus arises as to whether the order passed by the Member Election Commission on 12.12.2005 and affirmed on 13.10.2006 could be deemed as such a declaration so as to enable this Court in its constitutional jurisdiction to hold that the respondent No.6 was not qualified to be elected or chosen as a member of Parliament.

11. The respondent No.6 contested the election for U.C.72, Doomra Tehsil Saddar Multan after being de-seated on account of the order passed by the Member Election Commission. The same objection was taken against the respondent No.6 and was not considered while permitting the respondent No.6 to contest the election which, in fact, he contested and was declared as successful. The respondent No.6 once again contested the General Elections of 2013 as a candidate from N.A 148 (which is in issue in the instant petition) and submitted his nomination papers. Once again, a challenge was laid to the candidature of the respondent No.6 on precisely the same basis and in appeal the Division Bench of this Court did not consider the order passed by the Election Commission as a disqualification so as to bar the respondent No.6 from contesting the elections. It, therefore, follows that on subsequent occasion the courts have not taken the order passed by the Member Election Commission to be a declaration within the contemplation of Article 62(1)(f) of the Constitution. This, in my opinion, is for good cause and proceeds on the correct analysis of the facts of the case and the law applicable thereto.

12. At the time when the original order was passed by the Member Election Commission on 12.12.2005, the certificate issued by IBCC was not before the Member Election Commission and no finding was rendered with regard thereto. That certificate is dated 9.1.2006 and was produced at the time of the passing of the order on 13.10.2006 when the review application was dismissed. Suffice to say that the petitioner was not present on that date of hearing and, therefore, could not controvert the letter dated 16.2.2006 issued by the IBCC. He was, therefore, not afforded an opportunity at the relevant time of the passing of the order dated 13.10.2006 and in any case no finding was handed down by the Member Election Commission on whether the certificate produced by the respondent No.6 was forged or authentic as also what was the position of that certificate in view of the letter dated 16.2.2006 issued by the IBCC. Therefore, the entire matter remained inconclusive and there was no determination at all that the respondent No.6 was not sagacious, righteous or honest. The orders passed by the Election Commission can hardly be considered as a determination by a court of law within the contemplation of Article 62(1)(f) of the Constitution.

13. This brings us to the real issue which is engaged in these petitions. The respondent No.6 claim to have possession of an equivalence certificate issued by the IBCC. The learned counsel for the respondents contends that the said certificate was given to the respondent No.6 by the institution from which the respondent No.6 claims to have qualified and undertaken his academic studies. He does not represent that the said certification was issued to him directly by the IBCC. Therefore, the real question which begs an answer is whether the respondent No.6 can be held liable to be in possession of a certificate purportedly issued by the IBCC if the said certificate was provided to him by the institute of his studies rather than by the office of the IBCC directly. This issue takes the entire matter into the realm of disputed and controversial facts for which evidence needs to be taken down and the said issue can be resolved by awarding an opportunity to the parties to produce their witnesses. Such a course has not been adopted in any court of law and, therefore, the entire issue remains open to all sorts of speculation. No reliance can, therefore, be placed on this ground of attack in support of disqualification to be rendered on the basis of Article 62(I)(f) of the Constitution. It follows, therefore, that the respondent No.6 may have acted in good faith and may not be held liable for producing a certificate which ultimately turned out to be forged and fabricated. It may be that the said certificate was fabricated by the institution from which it was obtained by the respondent No.6 and this possibility cannot be ruled out. It would thus be iniquitous to hold the respondent No.6 culpable at this point of time and this is precisely why a declaration has been required by the provisions of Article 62(1)(f) of the Constitution.

14. Notwithstanding the above, a glance at the nomination papers filed by the respondent No.6 for the General Elections, 2013 would show that the educational qualification has been mentioned by the respondent No.6 as religious studies and Matriculation. There is no contradiction in my opinion in the educational qualification mentioned for the General Elections 2013 and the earlier one mentioned in the nomination papers for the local government elections held in 2005. In 2005, the respondent No.6 mentioned his educational qualification as M.A Arabic/Islamiyat. In the nomination papers for General Elections 2013 it has simply been mentioned as religious studies as well as Matriculation. It is quite understandable that the respondent No.6 mentioned the educational qualification as simply religious studies instead of writing M.A. Arabic/Islamiyat on account of the controversy which came to surround the certificate issued by the IBCC. In my opinion, there is no mis-declaration in this regard and the respondent No.6 did not think it right to rely upon that certificate as there was doubt created with regard to its authenticity or otherwise. No contradiction, therefore, has crept in the nomination papers for general elections, 2013 as also there is no contradiction with the nomination papers filed in the year 2005 for local government elections. Until the matter relating to the certificate was settled, the respondent No.6 was quite right in refusing to rely upon it and to mention his educational qualification as M.A Arabic/Islamiyat. The respondent No.6 has also mentioned Matriculation as his qualification and this is on the basis of the certificate issued by the Board of Secondary Education, Karachi dated 24.8.2006 and in respect of examination of Annual, 2006. The genuineness and authenticity of this certification has not been called in question by the petitioner and no exception can be taken to the mention of the educational qualification with regard to this certificate by the respondent No.6 in the nomination papers.

15. As regards the other ground taken by the petitioner for seeking a disqualification of the respondent No.6, regarding the failure to mention the criminal cases against him in the relevant column of the nomination papers, it has been urged that a criminal complaint had been filed against the respondent No.6 in which summons were issued by the judicial magistrate, Multan. Vide order dated 26.10.2011 the respondent No.6 was declared as proclaimed offender. The mere fact that the respondent No.6 was declared as proclaimed offender is sufficient itself to show that the respondent No.6 did not have knowledge regarding the proceedings in the complaint filed against him and thus it was otiose to expect the respondent No.6 to mention the said fact in the column relating to criminal cases against a candidate. Thus, nothing turns on this aspect of the matter and no disqualification can be visited upon the respondent No.6 on this basis.

16. The learned counsel for the respondent No.6 has taken threshold objections regarding the maintainability of these petitions on the ground of laches as also on the basis of Article 225 of the Constitution. It has also been contended that a person who has a personal motive and grudge against the member of the Parliament cannot maintain a petition of the nature which is under adjudication. This rule has been recognized by the Supreme Court of Pakistan as far back as in Aziz ur Rehman Ch. v. M. Nasir ud Din and others (PLD 1965 SC 236) and reiterated in Dr. Kamal Husain v. Muhammad Siraj ul Islam (PLD 1969 SC 42). The good faith element and motive in bringing the petition are important safeguards against vexatious and pernicious petitions which are intended for personal gains rather than as a bona fide attempt at exorcising the constituency or to act as a public spirited whistle blowers. It seems, from the documents produced on record, that the petitioner in W.P. No.8675 of 2014 has a personal score to settle. In an application for seeking bail filed by him with respect to FIR No.375 of 2013, the petitioner alleged that the respondent No.6 had been instrumental in the registration of the criminal case against him. Thus personal bias and animosity cannot be ruled out as the underlying and real course for filing of the instant petition.

17. A petition of this nature has the ultimate aim of deseating an elected representative of a constituency and must be viewed with circumspection by the Courts. From the narration of facts it is evident that the facts regarding his educational qualification were generally known and on its basis his election to a local council had been voided by the Member Election Commission in 2005. Despite that, the voters returned him as their representative in elections held thereafter and the will of the voters cannot be brushed under the carpet at the whim of a person. No doubt the courts act as gatekeepers but not to the extent so as to superimpose their will for that of the voters whose mandate is entitled to respect in a representative democracy.

18. Under similar facts, the observations in Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066) by the Supreme Court of Pakistan will be relevant. It was held that:

11. We have considered the above and are constrained to hold that the constitutional jurisdiction (reference Article 199) of the High Court in all the cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising its extraordinary discretionary powers, as the conditions mentioned in Article 199 of the Constitution are obviously meant for the purposes of regulation of the Courts jurisdiction and the availability of "other remedy" is one of such limitations. When the petitioner has no explanation to offer, as to why the "other remedy", which is a definite one in nature; is time bound and is, specifically designed and prescribed by the legislature keeping into consideration time constraints in the election process, but has not been availed for any good reason, by the petitioner..." "

12. Resultantly, in the circumstances of the case, the High Court had rightly refused to interfere in its constitutional jurisdiction, when an appropriate, efficacious and adequate alternate remedy available to the petitioner has not been availed by him without any justification. The High Court in such like cases is not bound to issue the writ, especially when there was no material on record to eminently and conclusively establish the inherent lack (as shall be explained in succeeding part of this judgment while dilating on another point) of respondent's qualification so that he could be hit by Article 62(f) of the Constitution. It may be pertinent to mention here that to hold a person lacking honesty, being not, Sagacious, righteous, Ameen and non-profligate, in other words is to declare him a fraud, cheat and dishonest, etc. which shall be a stigma on his face entailing great immense, and innumerable legal and social consequences and repercussions; this to our mind shall not be justified without there being an adjudication made by the Court of competent jurisdiction to hold him carrying such a "vice". In this connection reference can be made to the judgment of this Court reported as Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265), in which it has been held "if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment his candidature on the touchstone of Art.62(f) of the Constitution could be adjudged to the effect whether he was sagacious, righteous, non-profligate, honest or Ameen". This means that the declaration, determination and adjudication of a person falling within the mischief of the noted Article by appropriate forum is a pre-requisite. Such determination in appropriate cases can also be possible though the medium of Retuning Officer or the appeal arising therefrom, but it can hardly be agreed if it should be straight away done in the Writ Jurisdiction when there is a factual controversy involved."

19. The above observations perhaps were a catalyst in bringing about an amendment in Article 62 of the Constitution in laying down a declaration to the contrary by a court of law as a precondition.

20. The counsels for both the parties have relied upon a cluster of case law which is not required to be dilated upon in view of the peculiar facts adumbrated.

21. In view of the above, these petitions are without merit and are, therefore, dismissed. ZC/M-23/L Petitions dismissed.