P L D 2008 Peshawar 10 (PLP)

HAMID FAROOQ DURRANI, J.

The respondent No.2Muhammad Asmatullah is a rival candidate of the petitioner in elections to the N.-W.F.P. Provincial Assembly PF-62. Kohistan-II. His nomination papers were accepted by the concerned learned Returning Officer on 27-11-2007 where after the petitioner filed an appeal before the Election Appellate Tribunal. In the said appeal, the petitioner remained unsuccessful in obtaining a favourable decision when the appeal was dismissed on 11-12-2007. He has now questioned the eligibility of respondent No.2 through the constitution petition in hand on the ground that the educational qualification, forming basis for nomination of said respondent, was not recognized by the H.E.C. for the purposes of equivalence to the Degree/Graduation requisite to contest the general elections. In the said regard, he referred to Notification dated 25-1-2007 issued by the H.E.C. wherein the list of wafaq/Tanzeem and Rabitual Madaris, besides five individual Madrassas, was provided. The Sanad of "Shahadatul Almiya Fil Uloomal Arabia wal Islamia" granted by the enlisted institution was rated equivalent to M.A. Arabic/Islamic Studies for the purpose of teaching Arabic and Islamic Studies in Colleges and Universities. The petitioner was of the view that in the light of said Notification the contesting respondent was not eligible to contest the forthcoming elections for Provincial Assembly Constituency as he did not fulfil the criteria laid down in Article 8(a) of Chief Executive Order No.7 of 2002 as well as section 99(cc) of the Representation of the Peoples Act, 1976. In support of his submissions, the petitioner relied on Sanaullah Khan's case PLD 2005 SC 858.

2. The respondent No.2, on the other hand, stated that he was holder of Sanad "Shahadatul Almiya" which was duly and competently issued by the institution, namely, Wafaqul Madaris, Pakistan at Multan, besides, he also held a Sanad Shahadatul Almiya conferred by Jamia Darul Uloom, Korangi, Karachi. The said two institutions were enumerated under their respective headings in Notification issued by H.E.C. for the purposes of equivalence. He was, therefore, qualified to contest the proposed election.

3. On 18-12-2007, learned Advocate-General, N.-W.F.P. was put on notice in order to assist the court in the matter. He informed at the bar that the issues raised through the writ petition in hand was directly a matter subjudice before the apex Court through Constitution Petition No.37 of 2003 (Dr. Muhammad Aslam Khaki v. Speaker, National Assembly, Islamabad and others). As the said matter was pending adjudication, it was not for this Court to dilate upon in .the meanwhile, the learned Advocate-General opined.

4. We have gone through the record available before us and have noticed that the Sanad conferred upon respondent No.2, as has been made basis of educational qualification for his nomination for election to the Provincial Assembly has been issued by an institution which finds mention in the Notification issued by the H.E.C. while the requirement of law also speaks of Bachelor Degree in any discipline or any Degree recognized as equivalent thereto by the U.G.C. would educationally qualify a candidate to contest the elections for the Assembly. We have also gone through the text of Constitution Petition No.37 of 2003 ibid, as provided by learned Advocate-General and have noted that the subject matter of the said petition is similar to the present writ petition. The said Constitutional Petition is admittedly pending decision before the Apex Court while most of the candidates having qualification similar to that of respondent No.2, have been found educationally qualified to contest elections in various constituencies by the respective Returning Officers. For the Constituency PF-62 itself, there are various other candidates with similar qualification but their nomination has admittedly gone unchallenged by the petitioner. It is to be noted here that in the event of apex Court returning a finding disfavouring the respondent and other candidates having similar qualification, there would be legal remedy available to the petitioner to have recourse to. It is also observed that the judgment cited by the petitioner in Sanaullah Khan's case PLD 2005 SC 858 ibid would not' attract to the facts of present petition as the question involved in the referred matter was regarding the eligibility of a candidate for the elections under Local Governments Laws.

5. We, as a sequel to the above, are of the view that the findings of learned Returning Officer as well as learned Election Appellate Tribunal do not suffer from legal infirmity or jurisdictional defect, therefore, there is no occasion for us to interfere with the impugned findings. Resultantly, finding no merit in the petition in hand, we dismiss the same. H.B.T./194/P Petition dismissed.