P L D 2010 Supreme Court 828 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C J.

Pursuant to the general elections of the year 2008, Rizwan appellant got returned as the successful candidate from PP 34-Sargodha VII for a seat in the Provincial Assembly of Punjab. A rival candidate, namely, Ms. Nadia Aziz respondent questioned the said election essentially on the ground that Rizwan appellant did not hold a valid and a genuine B.A. degree and was thus not qualified to be a Member of the Punjab Assembly in terms of section 99(cc) of the Representation of the People Act of 1976 (hereinafter called the said Act). The Election Petition filed for the purpose under section 52 of the said Act got entrusted to the competent Election Tribunal comprising an Honourable Judge of the Lahore High Court which was accepted through a judgment dated 28-5-2010. The concluding part of the said judgment reads as under: (22) "In view of the above, it is clear and obvious that certificate relied upon by respondent No.1 to establish that he is a graduate does not pertain to respondent No.1 as the underlying record of the University pertaining to the said certificate, appear to be fabricated, interpolated, forged and fictitious. In view of above it is evident that respondent No.1 did not possess the requisite qualification, i.e. graduation to contest the election, so, issues Nos.1, 2 and 3 are decided in favour of the petitioner. (23) Consequently, the election of respondent No.1 is declared to be null and void with the result that seat of the Provincial Assembly PP-34 Sargodha VII has fallen vacant to be filled in through fresh election by the Election Commission of Pakistan in accordance with law. (2) Election Petition accepted in terms enumerated ibid."

2. This brought Muhammad Rizwan Gill appellant to this Court with an appeal under section 67(3) of the said Act, read with Article 225 of the Constitution impugning the said judgment of the Election Tribunal which appeal was accompanied by a Miscellaneous Application No.1624 of 2010 praying that the operation of the above-mentioned impugned judgment be suspended pending the final disposal of the appeal filed by the appellant.

3. It was, in fact, this miscellaneous application seeking the said interim relief which was fixed for today. Mr. Muhammad Akram Sheikh, the learned Senior Advocate Supreme Court appearing for the appellant addressed lengthy arguments in support of the said application which, however, went to the roots of the appeal itself and then submitted that since the arguments advanced by him were the same which he could have offered in defence of his appeal, therefore, he would have no objection if the main appeal itself was decided today. The learned Advocate Supreme Court for the contesting respondent No.1 also offered no objection to the disposal of the said main appeal today which is how this appeal is being decided through this judgment.

4. Needless to say that we have heard Mr. Muhammad Akram Sheikh, the learned Senior Advocate Supreme Court for the appellant at some length. We have also had the benefit of the assistance rendered by Khawaja Saeed-uz-Zafar, the learned Advocate Supreme Court for the contesting respondent No.1 and have also perused the relevant record.

5. As has been noticed above, it had been found by the Tribunal that Rizwan appellant had failed to discharge the burden cast on him to prove that he was a graduate or that the B.A. degree which he had offered in support of his said claim, pertained to him. Some of the reasons which, amongst others, had weighed with the Tribunal to reach the said conclusion, are reproduced hereunder:-- "

9. Name of the candidate as mentioned on Form Mark A as `Muhammad Rizwan'. Respondent No.1 in his statement on oath stated that his `original real name' was `Muhammad Rizwan Gill'. In the matriculation certificate produced by respondent No.1, his name is mentioned as `Muhammad Rizwan Gill'. Similarly, in the Intermediate Certificate also produced in evidence, name of respondent No.1 was written, as `Muhammad Rizwan Gill'.

10. On the left hand corner of Mark A, there is a specific indication/space for pasting of the photograph of the candidate sitting for B.A. Examination. Said portion is blank and no photograph is present. On the back of the Form Mark A there are specific instructions required to be followed by a candidate, and instruction No.18 specifically states that every candidate must enclose three latest passport size photographs duly attested along with the Form and one photograph must be pasted on the space specified therefor.

11. Record when produced was examined by this Court and it was noted that other forms in the record except the one bore photographs of the candidates.

12. Perusal of Mark A also reveals that portion of the form required to be filled in by the officials of the University designated as "For office use only" is blank other than the stamp of number. Neither name nor the roll number of the candidate is mentioned. The portion pertaining to the Punjab University registration number is also blank. So too is the space for identifying the NIC Number of the candidate. There is no mention of the college code or the college name.

13. It has also been noticed that name of the college form which respondent No.1 is alleged to have appeared is mentioned as `Government College, Bhakkar'. Furthermore, the document Mark A is attested by allegedly some body from Government College Sargodha and bears the stamp thereon. However, the NIC Number of the Attesting Officer is also conspicuous by its absence, and the space designated therefor is blank.

14. Instruction Number 7 of the Form Mark A requires a candidate to fill in the name of the Board from which he passed his Intermediate Examination and the attested copy of the said document/certificate be attached. Admittedly, no such certificate was found to have been appended with the Form Mark A, as has been specifically noticed by this Court, when the said Form was produced and the statement of Salam Ahmed Assistant Controller (Certificates) was recorded.

15. In Mark A there is a specific space for the NIC Number of the candidate which is also blank.

16. It was also found and recorded during the statement of Salam Ahmed Assistant Controller (Certificates) that record of the University pertaining to the examination was not in order."

6. Before we proceed to examine the worth of the findings recorded by the learned Tribunal, it may be mentioned here that the case of Ms. Nadia Aziz respondent was that Rizwan appellant was not a graduate; that he had never taken the B.A. examination of the University of Punjab and that the B.A. degree which he claimed to possess was not the degree awarded to him. The stance of the appellant obviously was that it was he who had actually taken the B.A. examination in question and that the degree in question had been actually and genuinely awarded to him by the University of Punjab.

7. In addition to the facts and circumstances which had been noticed by the Tribunal and some of which have even been reproduced above, what was further discovered by us from the record is as under: (i) it had been alleged by the respondent election petitioner through para-6 of her petition before the Tribunal that while contesting the election of the Nazim of Union Council No.152/13, Rizwan appellant had declared himself to be only a matriculate and had never claimed to be a graduate. Rizwan appellant admitted having so declared for the said election but explained that he had so done because the requisite qualification for contesting the said election was only matriculation. We have seen the said nomination paper which is available on record. The relevant column ( ﺝ ) did not ask whether the candidate was or was not a matriculation but what it asked was the Educational Qualifications of the candidate (ﺘﻌﻟﻴﻤﻰﻗﺎﺑﻟﻴﭟ) and Rizwan appellant's reply was

Matric. Thus, the explanation offered by the appellant for declaring them that he was only a matriculate and not a graduate, is not convincing; (ii) while appearing before the Tribunal as R.W.1, Rizwan appellant had deposed that he had taken his "B.A. Examination in 2001 and the result was declared in April, 2002." The degree in question of the University of Punjab, however, narrates that Muhammad Rizwan who had been awarded the said degree of Bachelor of Arts, had appeared "At the examination held in April, 2002"; (iii) it is also not understandable as to why the degree in question which pertained to the examination held in the year 2002 was issued on 14th November, 2006 as the said is the date mentioned on the said degree; (iv) the absence of the appellant's photograph on his Admission Form (Mark-A) which was necessary for the purposes of identification of the person who actually sits and takes the examination, had been attempted to be explained by the appellant's learned counsel by submitting that the appellant had in fact clipped the said photograph with the form which had either got misplaced or had been mischievously removed. Needless to mention here that according to Instruction No.18 available on the reverse side of the Admission Form (Mark-A), each candidate was obliged to enclose three latest passport size photographs duly attested, alongwith the Examination Admission Form and one photograph (attested only on backside) was required to be pasted 'at the specified place at Page-1 which was obviously not so pasted on the said form. Be that as it may, the explanation attempted by the learned counsel looses its worth in view of the answer given by Rizwan appellant, while appearing as R.W.1, to the question whether he had appended his photographs with his B.A. Examination Form which answer was:-. "I do not think that I appended my photographs with the B.A. examination form"; (v) the Admission Form (Mark-A) allegedly submitted by the appellant was meant for Annual/Supplementary Examination of the year 2001 but interestingly enough the B.A. degree allegedly awarded to the appellant, as has been mentioned above, falsified the claim and declared that the examination taken by the one to whom the said degree had been awarded, had been taken in April, 2002; (vi) one is not even sure whether any Admission Fee required to be paid for the examination had ever been deposited by the appellant because the column meant for identifying the city/the branch where such a fee had been deposited is blank; (vii) as per his Admission Form, Rizwan appellant was a permanent resident of Sargodha where his address was 89-A, Satellite Town. The Examination Centre where he had desired to take the said examination, as per column-12 of the Admission Form, was Government College, Bhakkar. No explanation could be offered to us as to why a resident of a city of Sargodha where a number of examination centres were available, would opt to travel all the way to Bhakkar to take the said examination. Needless to add that the question, why the appellant had decided to indulge in the luxury of taking the examination in question in a District other than his own and his desire to travel all the way to Bhakkar only to take the said examination, defied reason and explanation; (viii) the signatures of the appellants as appearing on his said Admission Form (Mark-A) have no resemblance whatsoever either with his signatures appearing on his I.D. Card or even with his signatures appearing on his power of attorney filed in this Court. A scanned reproduction of his signatures on the said Admission Form, his signatures on his I.D. Card and his signatures on the said power of attorney are as under as A, B and C respectively:

8. At this stage, we feel compelled to place on record another rather revealing incident which took place before us. One of the subjects which Rizwan appellant had allegedly offered for his B.A. examination and in which he had allegedly secured no less that 72% marks was, `I.P.S.'. While the appellant's learned counsel was making his submissions, the appellant came to the podium and wished to be heard in person. Taking advantage of his said desire and of his presence, we asked him as to what did stand for and what was this subject about? A long silence was the appellant's answer. On our insistence and after a deep thought, the appellant's reply was: "HEALTH AND PHYSICAL EDUCATION" We were shocked at this answer coming from a person who claimed to have studied this subject at B.A. level and who, as has been noticed above, had obtained 72% marks in the same. According to the Admission From (Mark `A') and according to the Detailed Marks Certificate produced on record by the appellant himself, 'I.P.S.' meant:-- "ISLAMIC STUDIES/ETHICS AND PAKISTAN STUDIES"

9. This answer of the appellant, said it all.

10. Having thus examined all aspects of the matter, we find that no exception could be taken to the conclusions reached by the learned Election Tribunal and to the impugned judgment.

11. This appeal is, consequently, dismissed with costs.

12. While dealing with the matter of Nawabzada Iftikhar Ahmad v. The Chief Election Commissioner and others Civil Petition No. 287 of 2008 decided on 25-3-2010 (PLD 2010 SC 817), this Court had highlighted the significance, the importance and the usefulness of the Legislative institutions of a country and hence, the dire need to protect their majesty, their dignity, their sanctity and their purity. Following is, what had been observed by this Court, through this judgment:- 14. "The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact, shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said August House." It had been further observed through the said judgment that`-- "Needless to add that the first and the most crucial step towards the attainment of the said commanded goal is to ensure that no person who was not constitutionally and legally qualified to contest any such election, was allowed to enter the arena."

13. And it was to preserve the pureness, the piety and the virtuousness of such-like eminent and exalted institutions that, inter-alia, Articles 62 and 63 of the Constitution and section 99 of the Representation of the People Act of 1976 had declared that, amongst others, the persons who were not of good character; who indulged in commission of major sins; who were not honest; who were removed, dismissed or compulsorily retired from service of Pakistan; who had obtained loans from banks and had not re-paid the same or who had indulged in corrupt practices during the course of elections, would not be allowed to pollute the clearness of these legislative institutions.

14. It was for this reason that the provisions of Article 218(3) of the Constitution commanded the Election Commission:-- "(3) ??.to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against." [Emphasis and underlining has been added]. Referring to the above-quoted provision of the Constitution and various provisions of the Act of 1976 and/or the Rules framed thereunder including the provisions of section 14 of the said Act, this Court had found through Nawabzada Iftikhar's case ibid that a demanding duty stood cast on the Election Commission and on all others performing functions under various election laws to ensure not only that the elections were fair and honest; that no corrupt practices were practised in the elections but also that the individuals who had been declared disqualified to enter the Legislative institutions, were not allowed to break into the said houses and further that to discharge the said onerous obligations, the said functionaries had not been left at the mercy of the objectors or even of the rival candidates and that they could act in the matter even suo motu. Needless to add that the Election Tribunals envisaged by Article 225 of the Constitution and performing functions under the said Act of 1976 and even this Court while acting as the Appellate Forum under section 67 of the Act of 1976, also stand charged with .the same duties.

15. As has been noticed above, the provisions of Article 218(3) of the Constitution order the Election Commission, amongst others, to GUARD AGAINST THE CORRUPT PRACTICES. Wouldn't the said Commission then be failing in its duty if it did not so do? '16. `CORRUPT PRACTICE' stands defined by section 78 of the Representation of the People Act, 197 6 and includes vide clause(d) of subsection (3) thereof, an act of making a false statement by a person in respect of his "EDUCATIONAL QUALIFICATIONS". The provisions of section 82 of the said Act, make the said corrupt practice, a penal offence punishable with an imprisonment for a term which may extend to three Bears or with fine which may extend to five thousand rupees or with both. Section 94 of the said Act makes the said offence, a cognizable offence triable by a Sessions Judge. The provisions of section 100 declared that a person guilty of a corrupt practice could then get disqualified for a specified term from being elected as a member of an Assembly.

17. Shouldn't it then be incumbent upon the Election Commission, in discharge of its constitutional obligations to guard against corrupt practices, to launch prosecution of persons who stood accused of the commission of the same. Needless to say that punishment and consequent disqualification of such-like persons would not be an act undermining the dignity and the majesty of the Houses of Legislature but an act in aid of enhancing the same.

18. The Election Commission is, therefore, directed to initiate action against all such persons who are accused of commission of corrupt practices; of committing forgery and of using, as genuine, documents which they knew or at least had reason to believe to be forged. The Election Commission shall ensure that the investigations in these matters are conducted honestly, efficiently and expeditiously and shall depute one of its senior officers to supervise the same. The learned Sessions Judges to whom these trials shall then be entrusted, are also directed to conclude the same without any delay, in consonance with the spirit of the Elections laws as displayed, inter-alia, by the Provisos newly-added to subsection (I-A) of section 67 of the said Act of 1976 through the Amending Act No.IV of 2009 promulgated on 2-11-2009. In any case, it should not take each learned Sessions Judge who gets seized of the matter, more than three months to conclude the same.

19. And before, we part with this matter, we may add that no criminal could ever be heard, in any civilized society, to avoid punishment on the ground that some others, similarly placed had, on some earlier occasions escaped punishment. Like-wise, no individual except the ones constitutionally and legally authorized for the purpose, could be allowed in a civilized society to declare which law of the land was good and which one was a bad law and then feel authorized to defeat the same through un-lawful and even criminal acts. Such-like attempts, if not nipped in the bud, could lead a society into the dark depths of destruction. Every law of the land, so long as its exists on the statute books, has to be respected, and must be followed. The same should also serve as an answer to some reservations expressed about disqualification of a person from becoming a Member of a Legislative Institution if he did not practice the obligatory duties. Suffice it, however, to add that identifying persons who could or could not become members of Legislative Institutions was a policy matter but so long as such-like disqualifications were not omitted from the Constitution or the law, the Courts were bound to honour and enforce the same and not so doing could amount to a grave dereliction of duty.

20. This appeal is dismissed, as above mentioned, subject to the directions given above. M.A.K./M-65/S?????????????????????????????????? ??????????????????????????????????????????????? Appeal dismissed.