2004 PLP 1365 (MLD)

Petitioner claims to be voter of Constituency NA-89 Jhang-IV, where bye-elections have been ordered to be held by the Election Commission of Pakistan vide order dated 2-4-2004 and respondent No.1 has been appointed as a Returning Officer. Respondent No.4 has filed his nomination papers for contesting the forthcoming bye-election from Constituency NA-89 Jhang-IV, whereagainst petitioner filed an objection that respondent No.4 is not graduate and thus is not qualified to contest elections being a holder of the degree/certificate issued by Ittehad-ul-Al-Arabia Pakistan, Par Hoti Mardan, which, is not recognized by the University Grant Commission as equivalent to Bachelor degree. The objection petition filed by the petitioner was dismissed by respondent No. 1 vide his order dated 13-4-2004. Petitioner has now filed instant Constitutional petition praying that order of respondent No.1 dated 13-4-2004 may be declared as illegal, void and of no legal consequence. It is contended that petitioner. produced a copy of the notification of the University Grants Commission before respondent No. 1 wherein Ittehad-ul-Madaras-Al-Arabia Pakistan, Par Hoti Mardan, does not figure and thus in view of provisions of Article 8-A of the Conduct of General Elections Order, 2002 respondent No.4 is not qualified to be elected or chosen as a member of the Parliament. It is further contended that the claimed degree of respondent No.4 is not equivalent to Bachelors degree, hence objection petition of the petitioner has incorrectly been dismissed.

2. Mr. Muhammad Shan Gul, Advocate, appeared on behalf of respondent No.4 and objected to maintainability of the Constitutional petition by a voter on the ground that he is not' an aggrieved person as held by this Court in consistent three judgments in W.Ps. Nos. 1694, 17116 and 17430 of 2002. He further referred to the bar contained in Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, to contend that no election or process relating thereto can be challenged through a Constitutional petition except by way of an election petition before the Tribunal, which will be ultimately constituted for this purpose. In this behalf, reference to the judgment of the Honourable Supreme Court in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning' Officer, NA-158, Naushero Feroze and others (1994 SCMR 1299), Noor Hassan v. The State (1989 SCMR 396) and Ch. Nazir Ahmed and. others v. Chief Election Commissioner" and 4 others (PLD 2002 SC 184).

3. I have anxiously, considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. It is not disputed before me that respondent No.4 did his Shadatul Sanvia-tul-Aamma Fil-Aloom Al-Arabia Wal-Islamia (Matriculation) vide certificate dated 21-5-1997. Shadatul Sanvia-tul-Khasa Fil-Aloom Al-Arabia Wal-Islamia (F.A.) vide certificate dated 20-4-1999 and Shahadatul Aalia Fil-Aloom at-Arabia Wal-Islamia (B.A.) vide certificate dated 10-10-2004 and thereafter Sahdatul Aalmia Fil-Aloom Al-Arabia, Wal-Islamia (M.A. Arabic, Islamiat) vide degree dated 10-10-2003 from Ittehad-ul-Madaras-Al-Arabia Pakistan, Par Hoti Mardan. During the earlier general elections, certificate/Sanads awarded by the said Institution were recognized as equivalent to M.A. by Gazette notification dated 25-7-2002 by an Election Tribunal consisting of my learned brothers Raja Muhammad Sabir and Muhammad Naeemullah Khan Sheiwani, JJ., while dealing with a similar case .in Election Appeal No.193(R)/2002 titled "Mian Muhammad Imran v. Returning Office". In the said appeal the Honourable Tribunal graciously accepted the appeal and set aside the order of the Returning Officer, whereby his nomination papers were rejected and consequently name of the appellant was ordered to be included in the list of validly nominated candidates.

4. Respondent No.4 also produced certificate from Controller of Examination of Ittehad-ul-Madaras-Al-Arabia Pakistan, Par Hoti Mardan; to show that the certificate/Sanads awarded to him are genuine and he had been studying in the said institution. Be as it may, proceedings before respondent No.1 were summary in nature, but in spite of it, the matter has thoroughly been thrashed and if ultimately it comes to the light that respondent No.4 is not qualified to be elected as a member of Parliament, according to Article 8-A of the Conduct of General Elections Order, 2002, an election petition on the basis of pre-election disqualification will be maintainable and can be processed under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973. Petitioner, who is simply a voter and cannot maintain such an election petition, can avail other remedies available to him at law, where some, detailed trial of the controversy, after recording of evidence may be conducted:

5. It has rightly been pointed by the learned counsel for respondent No.4 that voter is not an aggrieved person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and thus he cannot maintain this Constitutional petition, in view of the law laid down by this Court in unreported judgments referred to above. The provisions of Article 199 of the Constitution are not designed or aimed at to de‑franchise or exclude a contestant from the election as held by the Honourable Supreme Court in the cases of Ghulam Mustafa Jatoi (supra) Noor. Hassan (supra) and Ch. Nazir Ahmed and others (supra) Respondent No.4 being prima facie qualified to contest the elections, I am not persuaded to issue any writ as prayed, at this stage, hence this petition is consequently dismissed in limine. M.A.W./S-85/L Petition dismissed.