2004 PLP 36 (MLD)

(ii) .................................... (3A) .................................... (4) ..................................... (5) ..................................... (6) ..................................... (7) ..................................... 52: Election petition.‑‑‑No election shall be called in question except by an election petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner). (2) An election petition shall be presented to the Commissioner within [forty‑five days] of the publication in the official Gazette of the name of the returned candidate and shall be accompanies by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan' or at a Government Treasury or sub‑Treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees.

78. Corrupt practice.‑‑‑A person is guilty of corrupt practice 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, assets and liabilities or any liability with regard to payment of loans or adherence to party affiliation specified in subsection (2) of section 12] (4) ....................... (5) ....................... (6) ........................

82. Penal for corrupt practice.‑‑‑Any person guilty of corrupt practice shall be punishable with imprisonment for term which may extend to three years, or with fine which may extend to five thousand rupees, or with both.

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 (XXIII of 1974), or any other law for the time being in force; 18A. Educational qualification for member' of Majlis‑e‑Shoora Parliament) and a Provincial Assembly. Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV 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.] (Underlining is by me.)

15. As is mentioned in the foregoing paras, Mr. Channa, in his arguments, stated that except Issue No. 1, he did not press outer issues. In this regard, it will be pertinent` to note that the issue of non- maintainability of the election petition was not proposed by petitioner, but by learned counsel for respondent No.1, on which, Mr. Channa, stated his consent in writing. In this situation of Mr. Channa not pressing this issue is of no consequence.

16. A question of maintainability of a lis is of paramount importance. It touches the very root of a matter and needs to be addressed first. Learned counsel for respondent No. 1 who had raised the above issue, however, did not state as to how this election petition was not maintainable. On the other hand, the legal position is very clear. A candidate for an Election is competent to call in question that selection by way of an election petition within terms of section 52 of the Act, reproduced above. Besides, no violation of provision of section 54 or 55 of the Act is alleged. I also do not find that the said provision has not been violated. Accordingly, in my view, this election petition is maintainable.

17. Coming to the amended Issue No. 1, it may be stated that in the first instance, it will be pertinent to refer to the documents in respect of educational qualification of respondent No. 1, which have been produced by petitioner in his evidence. According to learned counsel for petitioner, as stated above, these were produced by respondent No.1 himself before learned Returning Officer during the course of scrutiny. Learned counsel for respondent No. 1 also relied on the same documents, did not lead any evidence and closed his side. On close scrutiny of these documents and the report of verification got conducted by learned Returning Officer, what I have found is as follows.

18. Document Exh.7 is a certificate issued by Assistant Controller of Examination, Allama Iqbal Open University, Islamabad. It reveals that respondent No.1 with Roll No.1‑14991211, Registration No.00‑SGI- 0153 had passed the courses mentioned therein of B.A. (General Group) securing 64% Marks and was placed in Grade 'B' and the date of declaration of result was 23‑8‑2002 i.e. a day before the Nomination day viz. 24‑8‑2002. This certificate bears a note that respondent No. 1 was, involved in an unfair means case of impersonation for courses of last semester and in case the allegations were proved the above result would stand cancelled. Then, the document Exh.9 is a photocopy of letter bearing No.F.2‑1/00/Conduct/UDIC/370/BA dated 30‑8‑2002 of Secretary Unfairmeans Committee informing respondent No. 1 that he was let off from the charge (use of unfairmeans). The letter is endorsed to the Deputy Controller of Examinations with a note thereunder, purportedly in the nature an advice, for declaration of result in the light of above decision. Below the above endorsement and the note in the said letter, there is no signature of either Secretary Unfairmeans Committee or any other officer of Allama Iqbal Open University. Mr. Channa, learned counsel for petitioner heavily relied on the said endorsement. He argued that the note thereunder reflected that, upto the date of issue of above letter i.e. unto 30‑8‑2002 the result of respondent No. 1 showing him to have passed Bachelor of Arts Examination was certainly not declared. He added that from said letter (Exh.9) it also proved that certificate (Exh.7) showing respondent No. 1 to have passed Bachelor of Arts Examination and result of that examination stood declared on 23‑8‑2002 was a false document. After going through both these documents put into juxta position, I do not find myself in agreement with Mr. Channa, in his assumption, for the simple reasons that it is the same certificate (Exh.7) which furnishes a reason for and gives a cause to the issuance of letter (Exh.9). It is that certificate which says that a case of impersonation against respondent No. 1 was under consideration and in case the allegation was proved his result would stand cancelled. Therefore, as a natural corollary, the authorities seized with the matter holding an enquiry were bound to decide the case and declare the result of enquiry. In this case, it was Unfairmeans Committee who decided the case and communicated to respondent No. 1 its decision on 20‑8‑2002 and there was nothing wrong in it; so also there was no wrong in advising the Deputy Controller of Examination to declare the result in the light of decision of Unfairmeans Committee to make it known to all concerned that respondent stood absolved of charge. Obviously, the result of examination and the result of enquiry are two distinct propositions. Be that as it may, there is nothing on record to indicate that result of relevant examination of respondent No. 1 was withheld at any time and was made dependent to be declared as a consequence of decision of Unfairmeans Committee. Besides, looking at the said document (Exh.9), in the context of allegation of learned counsel, it may be stated that, had it been the intention to forge the document, it could have been prepared without inserting unsigned endorsement and the note thereunder which is couched in few words less than a complete line. Thus, the presence of the endorsement rather evidences that the said document is in conformity with certificate (Exh.7) and not considered as an ingenuine document, moreso, when it fits in the chain, of events. Thus, I am clear in my mind that the endorsement with relevant note thereunder in letter (Exh.9) does not negate the fact of declaration of result of respondent No. 1 on 23-8-2002.

19. The fact that the respondent No. 1 passed the examination on 23‑8‑2002; as well, gets support from an other document viz. the Transcript (Exh.10) issued by Controller of Examination of Allama Iqbal Open University, which on its top bears a Serial No.34225 of the relevant book and reflects in clear terms that respondent No.1, with Registration, No.00‑SGI‑0163 and Roll No.1‑4991211 completed all the requirements of Bachelor of Arts (General Group) on 23‑8‑2002 and secured 64% marks and his cumulative Grade was 'B' . The details of marks and grade shown in the said Transcript are also the same as are shown in certificate Exh.7). Mr. Channa, in his arguments, termed the document (Exh.10) to be spurious, but, did not say as to on what basis he made that allegation:

20. Perusal of record shows further that learned Returning Officer, PS‑6, Ghotki‑II, had written a letter bearing No. ELEC/05/2002 dated 31‑8‑2002 (Exh.14) whereby, he had required the Controller of Examination, Allama Iqbal Open University, Islamabad to verify through Fax the authenticity of above mentioned certificate (Exh.7) and the Transcript (Exh.10) produced before him by respondent No.1. Accordingly the same were verified and the Assistant Registrar (Examination) of said University vide his letter No.26103 dated 2‑9‑2002 (Exh.15), through Fax, intimated learned Returning Officer that Provisional Certificates issued to respondent No.1 were verified and found correct. Mr. Channa during the course of his arguments, expressed his doubts about the authenticity of said report. He stated that at the foot of said report the date appearing for sending that report through Fax machine is 11‑12‑2001 which relates to the time much before the date i.e. 31‑8‑2002 on which learned Returning Officer asked for verifications of documents. I have examined photocopy of the said report coming from possession of petitioner and produced as Exh.15 and find that the date so appearing on these documents itself is doubtful, firstly, for the reason that it is not printed in an up‑right manner, there are some black marks around he said date and the other material shown against 'it which raises a question whether such date could be the one on which it was sent to learned Returning Officer in view of what is discussed next to follow. The date so printed in this document is of remote past when even Article 8‑A of the Order and cause (cc) of subsection (1) of section 99 of the Act stipulating graduation as one of conditions were not on Statute Book and were inserted by way of amendment on 24‑6‑2002 and 31‑7‑2002 respectively (Election Laws General Election 2002 (Volume. 1) published by, Election Commission of Pakistan referred). Even, it cannot be said with certainty, in such situation, that at that time learned Returning Officer who called for the requisite report stood appointed. The letter containing the said report is addressed to the Additional District and Sessions Judge/Returning Officer Ghotki. On the same hypothesis, if the date of sending that letter through Fax is taken to be 11‑12‑2001, how the sender of report could have conceived that Additional District and Sessions Judge Ghotki would be appointed as a Returning Officer. It will be pertinent to note that Exh. 15 as produced by petitioner is a photocopy of report and the original must be available in the file/on record of Returning Officer. Petitioner had, initially, moved an application to call for the said file/record, but, at later stage when the matter came up for recording evidence, he did‑ not press that application. Be that as it may, even the photocopy of the report at its top bear 2‑9‑2002 as the date of issue of said report by Assistant Registrar (Examination), Allama Iqbal Open University, Islamabad and it was received by learned Returning Officer on the same day as would appear from the following observation in his order dated 2‑9‑2002 (Exh.16): "In this context the undersigned sent the document to the Controller, Allama Iqbal Open University, Islamabad through Fax. The Assistant Registrar Examinations, of the Department of Examination "certificate section" of the Allama Iqbal Open University has verified through his letter 'No.F.1, 5/2001- ACE/Cert. 26103, dated 2‑9‑2002, which letter is received through Fax, that the certificates produced by the candidate were verified and found correct and that he hays completed his required number of courses and declared successful. In my humble opinion in view of such verification there is no need of any further enquiry to be directed regarding the genuineness or authenticity of the documents. Result of the candidate was announced on 23‑8‑2002 and it is mentioned in each certificate, therefore, the candidate was graduate as the time he filed his nomination paper." Thus the doubts expressed by learned counsel for petitioner do not seem to have sound basis.

21. On examination of documents produced in evidence it has also surfaced that respondent No. 1 has produced with his Nomination Paper a receipt for Rs.250 deposited on 23‑8‑2002 with First Women Bank Ltd: for obtaining certificate of B.A. This receipt clearly shows that the above amount was deposited in the name of respondent No.1 with Roll No.1 -4991211 and Registration No.00‑SGI‑0163, the same numbers which are shown in other documents i.e. certificate (Exh.7), letter dated 30‑8‑2002 (Exh.9) Transcript (Exh.10) and the report (Exh.15) of verification of said document. Besides the said receipt, an affidavit of respondent No. 1 was also produced. A copy of said affidavit has been produced by petitioner himself in his evidence as Exh.11 in which respondent No. 1 has stated unequivocally that he is a graduate and result of examination was announced on 23‑8‑2002, whereby, he was declared successful and that he had applied for issuance of B.A. certificate/degree but due to short time could not get the same which would be filed at the time of scrutiny. Perusal of abovesaid affidavit reveals that the judicial paper on which the contents of above affidavit were typed was purchased on 24-8‑2002 by respondent No. 1 who solemnly affirmed the same on the very day. Mr. Akhund, learned counsel for respondent No.1, in his arguments, stated with great degree of force that the said affidavit was filed before the Returning Officer on 24‑8‑2002. Also, in his written statement, respondent No. 1 has stated, so, therefore, I see no reason to disbelieve them.

22. In the instant case, since petitioner and other candidates had objected to the Nomination of respondent No. 1 on the ground that he was not a graduate, the Returning Officer conducted an enquiry under section 14(3) of the Act, reproduced above, during which, with his permission (document Exh. 6 referred) a certificate was produced and obviously the Controller of Examination Allama Iqbal open University. Islamabad, on being directed, certified the genuineness of documents of graduation of respondent No.1, which clearly indicated that the result of examination was declared a day before the Nomination day. Learned Returning, Officer, by accepting Nomination Paper decided the matter finally on the last day of scrutiny viz. 2‑9‑2002, which has not been disputed. This furnishes a reply to the objection of Mr. Channa that the Returning Officer had acted illegally. In this behalf, it may be stated that in support of his objection. Mr. Channa had referred to the case of Balach Khan v. Mohabat Khan Mari (PLD 2003 Quetta 42) which relates to pre‑election exercise. In the said case both the parties had filed two different certificates in respect of educational qualification of respondent in that case. Nomination Paper of respondent was accepted by Returning Officer, against which appeal filed by petitioner was dismissed by Appellate Tribunal. Petitioner challenged it by way of Constitutional petition which was heard by a 'larger Bench of three Judges who while dismissing the same observed that in such situation it was not possible for learned Election Tribunal. (Appellate Authority) to reach to a definite conclusion without holding an enquiry and providing opportunity to the parties to prove their respective contentions through evidence which was not possible under section 14(5) of the Act. Thus it will be seen that the cited case is totally in different circumstances.

23. The other cases of Saifullah and Intisar (supra) referred to by Mr. Channa, too, are in distinguishable circumstances as will appear from what following next.

24. In case of Saifullah (supra) the question involved was of admission of petitioner to the first year MBBS in Bolan Medical College Quetta. Petitioner was resident of District Barkhan and had applied for admission against one of the two seats allocated for the said district. His request was however, turned down. At some later stage, District Barkhan was abolished and merged in Kohlu District. In such situation, petitioner submitted an application requesting that merit list of candidates might be prepared on the basis of newly created district which was rejected. Petitioner challenged rejection through a Constitutional petition, which too, was dismissed in limine while considering the terms of prospectus vis‑a‑vis the notification issued under Balochistan Land Revenue Act.

25. In case of Intisar (supra) petitioners' Nomination was rejected because his degree, as per verification report, was found bogus. His counsel before Hon'ble Supreme Court claimed that petitioner was a graduate having cleared annual examination, 1992, however, when he was confronted with report of Assistant Controller, University of Punjab, about his appearance in B.A./B.Sc. Examination, 2002 and lodging of a criminal case for unfairmeans, it was candidly admitted by him that one had appeared in the examination in place of petitioner Intentionally to deprive him from contesting the election. It is respectfully stated that in this case, it was observed that the contentions of petitioner's counsel that one Arshad had appeared in the said examination, 2002 in place .of petitioner, on the contrary further confirmed that the petitioner was not a previous graduate but attempted to get a degree by unfairmeans in order to contest election. No exception to the concurrent finding of facts recoded by two Courts on the degree being bogus was found and the petition was dismissed.

26. Coming to the plea raised by Mr. Channa that the above‑referred document, even otherwise, did not establish that respondent No. 1 was a graduate within terms of Article 8‑A of the Order, 2002, it may be stated that Mr. Channa laid much stress on words "possessing" and "Degree" as appearing in the said Article and urged that keeping in view the meaning of words "Possess" and "Degree", defined in Black's Law Dictionary. VIth Edition, on the basis of documents Exhs. 7 and 10 purporting to denote the educational qualification of respondent No. 1 as B.A., respondent could not be considered a graduate possessing Bachelor Degree. Elaborating his point of view further, he explained that in order to give a certificate the status of degree, it needs to be signed by the Vice‑Chancellor of the University. He referred to case of Pachiripalli Satyanarayana and dictionary meaning of above two words.

27. Mr. Akhund, however, refuted the above contention and expressed that the word "degree" when used to denote one's educational qualification simply means that he is holder of a title conferred on a graduate of a university and such document need not be always signed by the Vice‑Chancellor. Mr. Akhund referred to the words "Bachelor" and "Degree" appearing in Concise Oxford English Dictionary, Xth Edition. He also referred to Ballentine's Law Dictionary to explain the meaning of word "Degree".

28. In order to understand the meaning of the words "Bachelor", "Degree" and "Possess" in their true spirit, I have carefully gone though the dictionary meaning of words "Bachelor", "Degree" and "Possess". In the first place, I will advert to the meaning of the word Degree, which, according to Ballentine's Law Dictionary is reflected as "an award of rank in having completed a course of study", and according to Concise Oxford English Dictionary, it means "an academic rank conferred by a college or university after examination or after completion of a course" so also according to Black's Law Dictionary it means "title conferred on graduates of schools or university". Thus taking the view in the light of above meaning and keeping in view the claim of respondent No. 1 supported ‑by the document (Exh. 10) wherein it is mentioned that he has completed all the requirements of Bachelor of Arts (General Group) securing 64% marks with grade 'B', it cannot be said that he was not awarded the rank in having completed a course of his study. The word "rank" according to Black's Law Dictionary, inter alia, means Grade of quality or value. Then coming to word "possess" according to Black's Law Dictionary, VIth Edition, means to have a just right to; to be master of; to own or be entitled to. Considering the abovementioned dictionary meaning, it cannot be said that respondent could not claim to have just right to have passed the examination of Bachelor of Arts (General Group) or to be entitled to or to own it. According to Black's Law Dictionary, word bachelor means "one who has taken the first undergraduate degree" and according to Concise Oxford English Dictionary, the Word, "Bachelor" inter alia, means "a person who holds a first degree from a University or other academic institution (only in title and set expressions): it may be stated that document (Exh.10) is signed by the Controller of Examination, Allama Iqbal Open University. Mr. Channa did not challenge his authority in having signed the said document.

29. Coming to the case of Pachiripalli Satyanarayana (Accused petitioner) (supra), referred 'to by learned counsel for petitioner for explaining the meaning of word "possess" it may be stated that in the cited case the petitioner was charge sheeted under section 4(i)(a) Madras Prohibition Act that he was found to have been in possession of full bottles of Brandy in his iron safe and half bottle in almirah in his house without being covered. The first point for determination in the Court came to be whether the prosecution had brought home possession of these brandy bottles to this accused. In the above background of the case, the position, which came up under consideration, was the meaning of word "Possession" as per Sir John Salmond's Jurisprudence. Holland Jurisprudence and Markby's "Element of Law". From above, it will not only appear that the afore‑mentioned case is in distinguishable circumstances; the said case relates to the decision under provision of the law different to the election laws. In case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge (1994 SCMR 1299) it was observed that it is not safe to pronounce judgment on the provision of la one Act with reference to decision dealing with the other Acts which are not pari materia. In the circumstances, the cited case is of no assistance to petitioner.

30. It may be noted that according to section 78(3)(d) of the Act a person is guilty of corrupt practice if he makes or publishes a false statement or submits false or incorrect declaration in any particular material in respect of his educational qualification, shall within terms of section 82 of the Act be punishable for imprisonment for a term exceeding three years or with fine which may extend to five thousand rupees or both. It is well‑settled that allegation of illegal or corrupt practice is to be proved as a charge in a criminal trial. In this behalf reference may be made to the case of Capt. Sayed Muhammad Ali v. The Returning Officer, PS‑89, District Court, Karachi and 11 others (1999 CLC 2039), in which, while referring to a number of decisions of Hon'ble Supreme Court it was observed. (8) In the election disputes it is settled that the burden to prove illegal, and corrupt practices lies heavily on the petitioner and that these allegations must be proved with such standard as is required for proving a charge in criminal trial. It is further settled that in case of doubt arising out of the material placed before the Election Tribunal its benefits, must go to the returnee candidate (if any reference is needed see Muhammad Saeed and others v. Election Petition Tribunal West Pakistan and other (PLD 1957 SC 91), Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160, Syed Saeed Hasan v. Piyar Ali and 7 others PLD 1975 SC 6.

31. Upshot of above discussion is that as against the heavy weight of above evidence going in favour of respondent No. 1, to indicate that he was a graduate on 24‑8‑2002 when‑Nomination Paper was filed, nothing else is available on record in rebuttal. Petitioner has levelled the allegation, which must be proved with such standard as is required for proving a charge in criminal trial; in that, in my opinion, he has failed. Even otherwise, in case of doubt, if any, arising out of the material placed before me, its benefit must go to respondent No. 1, a returned candidate. Accordingly, I do not see any merit in this petition and dismiss the same with cost.

32. Office is required to send the R&P of this file to the Chief Election Commissioner. H.B.T./A‑505/K Petition dismissed.