P L D 2013 Peshawar 129 (PLP)

LAL JAN KHAN KHATTAK J.- Through the instant appeal Khalifa Abdul Qayum has challenged his conviction and sentence awarded to him on 2-4-2013 by the learned Additional Sessions Judge-V, Dera Ismail Khan in case registered against him under sections 199, 200 and 471, P.P.C. read with sections 78, 82 and 94 of the Representation of the People Act, 1976 at Police Station City D.I.Khan. The conviction and sentences awarded to him are as follow:-- i. Under section 199/200 PPC read with section 78(3) of Representation of People Act, 1976

Simple imprisonment for three years and to pay a fine of Rs.5000, in default to further undergo one month simple imprisonment: ii. Under section 471, P.P.C.

Simple imprisonment of three years and fine of Rs. 10,000/-. (Both the sentences are to run concurrently with benefit under section 382-B Cr.P.C.)

2. Relevant facts of the case are that Ahmad Nawaz (P.W.2) filed a written complaint with the District Police Officer, D.I. Khan to the effect that he has been authorized by the Chief Election Commissioner of Pakistan to lodge complaint against Khalifa Abdul Qayum, a returned candidate for PK-64, D.I. Khan under sections 78, 82 and 94 of the Representation of the People Act 1976 read with sections 199, 200 and 471, P.P.C., for his corrupt practice. The relevant portion of the written complaint dated 3-3-2011 is reproduced as under:-- i. That the respondent/accused contested election for the Provincial Assembly from PK-64 D.I. Khan in the year 2008, ii. That the respondent filed his nomination before the Returning Officer for the above said seat on 24-11-2007 mentioning therein his NIC No.149-88-056405 stating that he possessed educational qualification as Shahadat-ul-Almia from Ittehad-ul-Madaras and Shahadat-ul-Alia from Dar-ul-Ullom Mehmoodia Dhandi Azeemabad Bannu that he was not subject to any disqualification as provided under Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan from being elected to the Natioinal Assembly as per declaration by the respondent in his nomination paper. iii. That the respondent was required under the law to be a Graduate so as to be eligible for the seat of National and Provincial Assemblies. iv. That the Asnads of the respondent/accused allegedly issued by the Madrassas were scrutinized by the Higher Education Commission and found invalid vide letter dated 5-8-2010 keeping in view the Election Commission Notification dated 25-7-2002. v. The accused was issued notice by the Election Commission to appear and defend the case. During the hearing he failed to produce any rebutting defence. vi. That the respondent did not possess any graduation degree or equivalence of the degree at the relevant time under the law as such he made false declaration in the Nomination Paper claiming to be holder of valid graduation degree or equivalent degree under the law filed along with his Nomination Papers on 26-11-2007 knowingly gave false declaration as such committed corrupt practices within the meaning of sections 78, 82 and 94 of the Representation Act 1976 read with sections 199, 200 and 471 of the Pakistan Penal Code. vii. That the respondent has under the circumstances, prima facie, committed a corrupt practice having filed false declaration with regard to B.A. degree or equivalent degree therefore is liable to be prosecuted under the above sections of law".

3. On conclusion of the investigation in the case complete challan was put in the court against the accused on 2-11-2012. Provisions of section 265-C of Cr.P.C. were complied with whereafter the learned trial court framed formal charge against the appellant to which he did not plead guilty and claimed trial.

4. In order to substantiate its case against the appellant, the prosecution examined three witnesses followed by statement of accused recorded under section 342, Cr.P.C. The appellant examined himself on oath and also produced Maulana Azeem Khan as DW-1 and Ghulam Yahya Fakhri as D.W.2 in his defence.

5. In support of its case, prosecution first examined Mataa Hussain Sub Inspector a P.W.1 who on receipt of written complaint from Deputy Election Commissioner D.I. Khan Division incorporated its contents into F.I.R. No.106 dated 4-3-2011 which he exhibited as Exh.P.A. Ahmad Nawaz, Regional Election Commissioner was examined as P.W.2. He deposed before the court that he received letter No.F.6(15)/2010 dated 26-2-2011 from the Election Commission of Pakistan for initiating legal proceedings against the appellant. The said letter was produced by him as Exh.PW.2/1. He produced letter dated 3-3-2011 addressed by him to the DPO, D.I. Khan for registration of criminal case against the appellant which is Ex.PW.2/2. He also produced a copy of notification as Exh.PW.2/5 issued by the Higher Education Commission laying down a system and procedure for equivalence of final Deeni Sanad which depicts those religious institutions of the country which are empowered to award such sanad to the religious students.

6. The third witness produced by the prosecution is Ghulam Haider Shah, Sub-Inspector, who was examined as P.W.3. He conducted investigation into the case. This witness collected the nomination papers submitted by the appellant from the office of the then Returning Officer and produced the same before the court as Exh.PW.3/l. He exhibited copy of order of the Returning Officer accepting nomination paper of the appellant vide his order dated 1-2-2007 as Exh.PW.3/2. Copy of Sanad of the appellant in Shahadat-ul-Almia Fil-Aloom-e-Arabia Wal Islamia annexed by him with his nomination papers was exhibited as Exh.PW.3/3 and copy of sanad issued from Dar-ul-Aloom Mehmoodia Dhandi Azim Abad Bannu to the appellant was exhibited by him Exh.PW.3/4. After completion of the investigation he submitted complete challan against the accused.

7. After evaluating the prosecution and defence evidence in the light of arguments advanced before the court by the learned Deputy Public Prosecutor and counsel for the accused, the learned trial court found the accused guilty and on conviction sentenced him as mentioned in para one above.

8. Learned counsel for the appellant assailing the impugned judgment of conviction contended that the appellant has been charged for submitting with his nomination paper false Deeni Sanads but the prosecution later on took summersault by pleading its case that the sanad submitted by the appellant with his nomination papers were not awarded by approved Wafaq/Tanzeem-ul-Madaris, Rabit-ul-Madaris or five other individual Madaris recognized by the Higher Education Commission to award such Sanad vide notification Exh.PW.2/5. He further contended that in his nomination papers the appellant in clause-5 of page-3 has declared about his education qualification as under:--

9. Elaborating his this contention, learned counsel argued that the appellant never declared on oath that his above mentioned Denni Asnad have been awarded to him by a Madrisa having affiliation or registration with Wafaq, Tanzeem-ul-Madaris or Rabit-ul-Madaris etc. Learned counsel for the appellant then went on to argue that the allegations of falsehood or fakeness of his Deeni Asnad have been belied by D.W.1 and D.W.2 who appeared before the court and deposed on oath that the Deeni Asnads submitted by appellant have been issued to him by their respective Madaris which are duly registered with the Government of Pakistan under the Registration of Society Act 1860 and such Sanads are neither fake nor bogus. Summing up his arguments, the learned counsel contended that no case as build up by the prosecution has been proved against the appellant who deserves acquittal.

10. As against the above, learned counsel appearing for the Election Commission of Pakistan and learned Additional Advocate General of Khyber Pakhtunkhwa defended the judgment impugned by the appellant. Learned counsel for the Election Commission of Pakistan contended that while submitting Deeni Asnad with the nomination papers, the appellant knew that his Deeni Asnad have not been issued by Madaris having registration or affiliation with Wafaq, Tanzeem-ul-Madaris or Rabit-ul-Madaris or by five other individual mudaris recognized by the Higher Education Commission in this behalf and that his case is fully covered under the sections of law for which he has been charged. He contended that the judgment of conviction is based on solid reasons and needs no interference from this court.

11. We have given thoughtful consideration to the arguments advanced by the learned counsel for the parties and have further perused the record of the case with the valuable assistance of the learned counsel for the parties.

12. Before dilating upon the merits of the case in the light of the evidence brought on record and arguments advanced by the learned counsel for the parties, the relevant law on the subject is reproduced below for advantageous purpose:- Section 12(2) of Representation of People Act 1976

12. Nomination of Election. (1) ............................... (2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and seconder and shall on the solemn affirmation made and signed by the candidate, accompany

(a) a declaration that he has consented to the nomination and that he fulfills the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member. Similarly section 78 of the Act ibid is also reproduced as under:

78. Corrupt practice.

A person is guilty of corruption if he

(1)................................... (2)................................... (3) Makes or publishes a false statement (or submits false or incorrect declaration in any particular material)

(a)............................. (b)............................. (c)............................. (d) in respect of his educational qualifications- Likewise, section 99 of the aforesaid Act reads as under:-

99. Qualifications and Disqualifications. (1) A person shall not be qualified to be elected or chosen as a member of an Assembly unless.- (a)............................ (b)............................ (c)............................ (cc) he is at least a graduate, possesses a bachelor's degree in any discipline or any degree recognized as equivalent thereto by the University Grants Commission under the University Grants Commission Act 1974 (XXII of 1974), or any other law for the time being in force. Similarly, section 8-A of the Conduct of General Election Order 2002 is as under:-- 8-A. Educational qualification for a member of Majlis-Shoora (Parliament) and a Provincial Assembly. "Notwithstanding anything contained in the Constitution of the Islamic Republic 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXX V of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act 1974 (XXIII of 1974), or any other law for the time being in force".

13. Admittedly the appellant has submitted with his nomination papers for PK-64 his Sanad of Shahadat Alamia which is Ex.PW.3/3. This sanad has been awarded to the appellant by Dar-ul-Aloom Par Hoti Mardan and Jamia Sirajia Qaidabad which institutions are not authorized or recognized by the Higher-Education Commission of Pakistan vide notification Ex.PW-2/5 to award Deeni Asnad to religious students. Neither these two religious institutions have been approved by the Higher Education Commission nor Asnad issued by them are ever recognized as equivalent to those Asnad which are awarded by the following religious institutions:-- (a)

1. Walaq-ul-Madaris Al-Arabia ,Markazi Office Gordon Town Sher Shah Road Multan.

2. Tanzeem-ul-Madaris Ahle Sunnat, Uamia Nazmia Razvia, Indrron Lahori Gate Lahore.

3. Wafaq-ul-Madaris, Al-Salfia, Hajiabad post code 38600 Faisalabad.

4. Wafaq-ul-Madaris Shia, Jamia-al-Muntazar, H.Block Model Town Lahore.

5. Rabita-ul-Madaris-al-Islamia, Mansoora Road, Lahore. (b) Names of five individual Madaris/Institutions 1 Jamia Islamia Minhaj-ul-Quran, 366 Model Town Lahore

2. Jamia Taleemat-e-Islamia, Sargodha Road Faisalabad.

3. Jamia Ashrafia, Feroz Pur Road Lahore.

4. Dar-ul-Uloom Mohammadia Ghousia Bhera, District Sargodha.

5. Dar-ul-Uloom Korangi Creek Karachi.

14. The sanad of Alamia Ex.PW.3/3, issued by Darul-Aloom Par Hoti Mardan, or the Madrisa where the appellant per his version has studied his religious education, i.e. Jamia Sirajia Qaidabad, district Khushab, has not been issued by authorized religious institutions so as to get it equalency to any BA or M.A. degree of any recognized educational institution of the country to enable the appellant to fulfill the requirement laid down in of the Representation of People Act 1976 and section 8-A of the Conduct of General Election Order 2009 as reproduced above.'

15. Even the appellant has not produced his basic sanad of Alia but instead produced a certificate issued by Dar-ul-Aloom Mehmoodia Dhandi Azim Abad, Bannu as Ex.PW.3/4, which is titled as ( ). This sanad can neither be termed as a sanad of Alia nor it has been issued by a religious institution recognized by the Higher Education Commission vide notification Exh.PW.2/5.

16. Apart from the fact that this sanad Exh.PW.3/4 of the appellant has been issued by a Madrasa not recognized by the Higher Education Commission it can not be termed as sanad of Alia as it shows only equivalency of Shahadat Aama with Matric, Shahadat Khasa with F.A, Shahadat Alia with B.A. and Shahadat Alamia with M.A.

17. Another factor which connects the appellant for his involvement with corrupt practice as envisaged by section 78 of the Representation of People Act, 1976 is that the so called sanad (Ex.PW.3/4) bears writing on it that the Madrasa issuing it is registered with Wafaq-ul-Madaris Multan, an authorized religious institution which sanads are considered equivalent. to BA, M.A. This aspect of the sanad probably led the Returning Officer to pass an order accepting the nomination paper of the appellant. The order of the Returning Officer dated 1-12-2007 is reproduced as under:-- "Candidate in person present along with proposer and seconder. The Madrasa Certificate/degree attached along with the nomination papers was thoroughly checked. As the said Madrasa is affiliated with the Wafaq-ul-Madaras. Moreover the matter of 'Dini Asnad' is also pending adjudication before the August Supreme Court of Pakistan, therefore, in absence of any objection the nomination papers of the candidate are accepted".

18. This act of the appellant squarely leads his case to his corrupt practice. Had he not submitted this sanad Exh.PW.3/4 with his nomination paper, his nomination paper would have definitely been rejected by the Returning Officer.

19. The appellant was under bounden duty to submit with his nomination papers only that sanad which had equivalency to BA/B.Sc degree as per notification of the Higher Education Commission referred above as Exh.PW.2/5.

20. The stance of the appellant that in his nomination papers he has only declared his educational qualification as Shahadat Alia (BA), Shahadat-ul-Alamia (M.A) which declaration cannot be termed as corrupt practice within the meaning of section 78 of the Act ibid. This stance of the appellant is dispelled as it is a settled principle of jurisprudence that ignorance of law is no excuse to ward off any punishment. Under the relevant law he was required to have annexed only those educational certificates/sanads which had backing of law behind them. Reliance in this respect is placed on the case-law laid down by the Honourable Supreme Court of Pakistan in PLD 2010 Supreme Court page-1089 which is to the effect that:-- "It may not be out of place to mention here that the question of recognition of a degree is equally important because the degree which is not recognized by the Higher Education Commission would be worthless like a piece of paper, cannot be equated to that of a 'Degree' because every degree is subject to recognition which provides sanctity of a degree". Similarly, in PLD 2005 Supreme Court 858, the honourable apex Court has held that:- "28(1) If 'Santa' i.e. Shahadat-ul-Aalmia-Fil-Uloom-ul-Arabia-Wal Islamic obtained by a candidate from a "Deeni Madrassah" (Seminary), which is duly recognized by UGC/HEC and its holder had passed examination of additional subjects, as it has been mentioned in Notification dated 17th November 1982 (No.8- 418/Acad/82/128) issued by UGC/HEC and equivalence certificate has also been issued by the Higher Education Commission under section 10((o) of the Higher Education Commission Ordinance 2002, then it is acceptable for the purpose of employment and for any other purpose including the elections of Local Government".

21. For the aforesaid reasons, we have found that the impugned judgment dated 2-4-2013 handed down by the learned trial court is based on sound reasons and correct application of law keeping in view the attending circumstances of the case in hand.

22. However, we have noted that the sentence awarded to the appellant is too much and needs reduction. Under section 82 of the Representation of the People Act, 1976, penalty for corrupt practice is provided as under:-

82. Penalty for corrupt practice "Any person guilty of corrupt practice shall be punishable with imprisonment for a term which may extend to three rears, or with fine which may extend to five thousand rupees, or with both". (underlining supplied)

23. Had the Returning Officer taken a little pain to demand from the appellant his basic sanad of Shahadat Alia, the situation with which the appellant is now faced could have easily been thwarted. As after filling nomination papers, a date is fixed for scrutiny of the papers and on that date the candidates attend the office of the Returning Officer who scrutinizes their nomination papers and if there is any thing short or any loophole in the nomination papers then such nomination papers are usually rejected. Since the Returning Officer has not performed his part of duty by asking the appellant about his basic sanad of Shahadat Alia, therefore, in our considered opinion a case for taking a lenient view regarding the quantum of sentence is made out.

24. We, therefore, maintain the conviction but reduce the sentence from three years' S.I. to one year's S.1. recorded under sections 199/200, P.P.C. read with section 78(3) of the Representation of the People Act 1976 as well as under section 471, P.P.C. while the sentences of fine are maintained. The appeal is disposed of in the above terms. MH/211/P Order accordingly.