2003 PLP 1068 (CLC)

CH. IJAZ AHMAD, J.

This order will dispose of Writ Petition No. 16694 of 2002, Writ Petition No. 16729 of 2002 and Writ Petition No. 16653 of 2002 as all these writ petitions are directed against acceptance of nomination papers.

2. The facts of the cases are briefly noted hereunder:--

3. Respondent No.2, Talib Raza Khan Sial, is a candidate for election as Member of the Provincial Assembly from Constituency No.PP

83. His nomination papers were accepted by the Returning Officer on 27-8-2002. The petitioner, herein filed an appeal before the learned Election Tribunal with a grievance that the B.A. degree allegedly possessed by the said respondent No..2 was a bogus document. It was dismissed by. the learned Election Tribunal vide order dated 7-9-2002 with the observation that as far as the genuineness of the document in dispute was concerned, recording of evidence would be necessary which exercise could not be gone into by the Tribunal: It was further observed that record of University (which was .examined by the learned Tribunal) was tampered with and that many registers maintained by the University showed that pages/leaves had been removed. The Tribunal also observed that the manner in which the record of the University was being maintained was deplorable. 4. - Respondent No.3 is a candidate for election as Member of tile National Assembly from N.A.

102. His nomination papers were accepted by the learned Returning Officer vide order dated 31-8-2002. The petitioner herein filed an appeal before the learned Election Tribunal with the averments that the B.A. degree possessed by respondent No.3 was a bogus document. The appeal was dismissed by the learned Election Tribunal vide order dated 7-9-2002 on the same grounds on which appeal subject-matter of Writ Petition No. 16694 of 2002, was dismissed.

5. Respondent No. l is a candidate for Election to the Provincial Assembly from PP

125. His nomination papers were accepted vide order dated 29-8-2002 in the absence of any objection from any quarter. The .petitioner. herein, who claims to be a voter of the said constituency, filed an application before the learned Returning Officer for review of the order accepting the nomination papers of respondent No.

1. The said application was dismissed vide order dated 2-9-2002. The petitioner then filed an appeal which was dismissed vide order dated 5-9-2002.

6. As directed by us the representative of the Punjab University alongwith its counsel stated in the first two writ petitions that the degrees of the contesting respondents in both the cases were bogus documents. In Writ Petition No,16653 of 2002, we had directed the office to get a report from the Karachi University which was received according to which the name of respondent No. l was not entered against seat No.30720 of 1984 for degree awarded in 1986. It was however, reported that original degree was required "for confirmation of forgery".

7. We invited attention of the learned counsel for the petitioners to the provisions contained in Article 225 of the Constitution as to non -maintainability of the first two writ petitions because these are by candidates who will ultimately have a remedy of filing an election petition if at all the respondents are elected' from their respective Constituencies.

8. Dr. A Basit, Advocate appearing for the petitioner in Writ Petition No. 16694 of 2002 contends that power of judicial review, despite the bar of Article 225 of the Constitution, was available. He relied on the observations in Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer 1994 SCMR 1299. According to him the University Authorities had verified that the degree of the contesting respondent was forged and bogus.

9. Raja Muhammad Anwar, Advocate appearing in Writ Petition No. 16729 of 2002 contends . that since the contesting respondent was guilty of fraud, it could be undone by this Court while exercising Constitutional jurisdiction and he placed reliance on the Chief Settlement' Commissioner, Lahore v. Raja Muhammad Fazal Khan and others PLD 1975 SC 331 and Tariq Mehmood v. The District Returning Officer, Faisalabad and 3 others 2001 SCMR 1991.

10. So far as Writ Petition No. 16653 of 2002 is concerned, it is by a voter. When confronted whether he was an "aggrieved person" to maintain this Constitutional petition, he relied on Lt.-Col. Farzand Ali etc. v. Province of the West Pakistan PLD 1970 SC 98.

11. On the other hand, the learned counsel for the contesting respondents in the first two writ petitions maintained that the bar of Article 225 of the Constitution is fully attracted. On merits their case is that the University Authorities had earlier verified the degrees of the contesting respondents. They also relied on the observation of the learned Election Tribunal that the record was maintained in a deplorable state. He further submits that 10the writ petitions arose out of the proceedings of the scrutiny which are summary in nature and therefore, this Court has no jurisdiction to determine the genuineness or otherwise of the documents. So far as Writ Petition No.16653 of 2002 is concerned, the learned counsel for the contesting respondent submits that even the report received by the Karachi University is not conclusive.

12. We have considered the, submissions made by the learned counsel for the parties and perused the record.

13. We do not think it necessary to go into details in the factual aspect of these cases because the two first writ petitions are by the candidates against acceptance of nomination papers and Article 225 of B the Constitution clearly bars these petitions. The first case to be noted on this question is Baqra v. Muhammad Yousaf and another PLD 1966 (W.p.) Lah. 149 in which while interpreting the provisions of Article 171 of the Constitution of the Republic of Pakistan, 1962 which are in paraniateria with the provisions of Article 225 of the present Constitution, a Division Bench of this Court held that against acceptance of nomination papers a Constitutional petition is not competent. The question was considered at length by the Honourable Supreme Court in Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC

396. The view taken by the Honourable Supreme Court was that once the election schedule has been announced it cannot be challenged except by way of an election petition. The contention of the learned counsel for the petitioner in the first two writ petitions that the judgment in the case of Javaid Hashmi was diluted by the Honourable Supreme Court in Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer 1994 SCMR 1299 has not impressed us because the observations recorded in the said judgment rather go against the contention of the learned counsel for the petitioner. We may add here that the writ petition in Ghulam Mustafa Jatoi's case was directed against the rejection' -of the nomination papers and not acceptance thereof and in that context the Honourable Supreme Court had observed that if a person does not have any remedy during or after the election, a writ petition will a maintainable. Reference may also be made .to Chaudhry Nazir mad and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 wherein the Honourable Supreme Court held that even if a mandatory provision wag violated, an election could not be called into question except through an election petition and a Constitutional petition is not maintainable. We are therefore, of the view that on account of bar of Article 225 of the Constitution, the first two writ petitions are not maintainable. We may add that in view of the earlier: verification of the degrees of the contesting respondents, the controversy involves resolution of a disputed question of fact which cannot be un ertaken in the present proceeding.

14. So far as Writ Petition No.16653 of 2002 is concerned, the petitioner is a ' voter and is not a person aggrieved to maintain this Constitutional petition. Reliance of the learned counsel for the petitioner on the case of Farzand Ali supra is out of place as the Constitutional petition in the said case was filed by an elector against the returned candidate. Further the report received from the Karachi University as to genuineness otherwise of the degree of respondent No.2 is not conclusive. We may observe here that this order is not to be construed as fore-closing the issue and it will be open to the aggrieved party to take available remedy if at all the contesting respondents are elected from their respective constituencies.

15. For what has been - stated above, all these writ petitions are dismissed. H.B.T./N-230/L Petitions dismissed.