2003 PLP 459 (MLD)

Date of hearing: 13th September, 2002. RAJA MUHAMMAD SABIR, J.‑‑‑Abdul Sattar appellant's nomination papers for the Constituency. NA 190‑Bahawalnagar‑III, were rejected by the Returning Officer on the ground that the degree issued by Canadian School of Management produced by him is not recognized by the University Grants Commission and is a bogus one and that he has not appeared before him to fill in four pages pro forma provided to him. The appellant dissatisfied with the order of the Returning Officer dated 2‑9‑2002 against upholding of the objection raised by opposing candidates has filed the instant appeal.

2. Mr. Muhammad Ahsan Bhoon, learned counsel appearing on behalf of the appellant submits that he was student of University of Cambridge and has passed the said examination in December, 1968. In 1970, he passed his intermediate examination in pre‑medical group under Roll No.4441. Subsequently, he got the degree in Business Administration Canadian School of Management in the year 1990. He has also produced original certificate showing the course attended by him and marks obtained therein. On the strength of aforesaid documents produced before us, he submits that he is a graduate and his nomination papers were erroneously rejected by the Returning Officer for his non appearance and non‑production of original degree. He has been running from post to pillar to get the verifications as ordered by the Returning Officer whereby four pages pro forma was provided to him to fill in and get a verification of the degree. He went to Karachi and thereafter to Islamabad. University Grants Commission provisionally recognized the degree from Canadian School of Management equivalent to graduation. According to him the appellant is a graduate and is not hit by the provisions of section 99(1A)(cc) of the Representation of the People Act, 1976. He has also produced a judgment dated 7‑9‑2002 passed by another Election Tribunal of this Court in Election Appeal No.57/R of 2002 wherein the degree issued by a foreign country not recognized by the University Grants Commission was treated equivalent to graduation.

3. Ch. Muhammad Ashraf Wahla and Hafiz Abdul Rehman Ansari, learned counsel for respondents Nos. 1 and 2; respectively, vehemently argued that the appellant is not a graduate. The degree in Business Administration Canadian School of Management is not recognized by the University Grants Commission and the provisional recognition has been withdrawn by the University Grants Commission. He is neither a graduate nor his degree is recognized by the University Grants Commission, therefore, he is hit by the provisions of section 99(1‑A) (cc) of the aforesaid Act.

4. We have heard learned counsel for the parties, at length and perused the relevant record. The Returning Officer relying upon Fax Letter No. 1393, dated 31‑8‑2002 by Muhammad Javaid Khan, Director (Accreditation and Coordination) refused to accept the appellant as a graduate for want of recognition of his degree by University Grants Commission. Subsequently, the provisional recognition has also been withdrawn, but the important fact which needs our consideration is whether a candidate who has obtained a degree from a foreign country, which is not recognized by the University Grants Commission, ipso facto will be presumed to be a non‑graduate and disqualified to contest the election.

5. This question arose before a Tribunal consisting of our learned brothers. Tassaduq Hussain Jilani and Abdul Shakoor Paracha, JJ. in Election Appeal No.57/R of 2002. While interpreting provisions of section 99 (1‑A) (cc) of the Representation of the People Act, 1976, as amended by Ordinance No. XXXVI of 2002 with a view to introduce academic qualification for the members of the National and Provincial Assemblies, the Tribunal held that a graduate of a foreign country, whose degree is not recognised by University Grants Commission cannot be ousted from contesting the election. The Tribunal has to satisfy itself whether the degree is genuine or is a forged one. If document produced before the Tribunal prima facie shows that the candidate is a graduate, he cannot be ousted from the election merely for want of recognition of his degree by University Grants Commission. A careful reading of section 99 (1‑A) (cc) of the aforesaid Act indicates that the expression "possessing a bachelor's degree in any discipline" or "any degree recognized as equivalent thereto by the University Grants Commission", or under "any other law for the time being in force" are disjunctive and therefore, have to be read as such. The letter of University Grants Commission though states that degree in Business Administration Canadian School of Management is not recognized by University Grants Commission, but this Court cannot add words or meaning, which are alien to the provision, itself. The provisions under consideration is a penal provisions and it entails the consequences of ouster of the appellant from contesting the election. It has to be liberally construed, has to be inclusive and the Court has to lean in favour of the subject.

6. Notwithstanding this aspect of the case, the appellant had shown original certificates of Cambridge University, F.Sc., and the degree in Business Administration Canadian School of Management issued by Toronto. Ontario on 24‑11‑1990. He has also produced BBA programs of his semesters, which he completed in 28 subjects. In the presence of aforesaid certificates, we are led to believe that prima facie the appellant is a graduate in Business Administration Canadian School of Management. He has been studying in Karachi, a centre affiliated with the aforesaid institution. The original documents are complete answer to the objection of the Returning Officer, whereby his rejected nomination papers of the appellant.

7. Objection of the respondents that the appellant has never been a student of any institution affiliated with Canadian School of Management in Karachi is without any basis. The letter dated 7‑5‑1986 issued by Government of Sindh, Education Department, placed on the record shows that Sindh Education Department has accorded permission to Learning Centre at Karachi of Canadian School of Management, after verification, visits and being satisfied with their progress under certain conditions. Undoubtedly, the Karachi Centre of the Canadian School of Management, is affiliated with Canadian School of Management, Toronto Ontario. The dispute raised in this appeal has already been resolved by a Tribunal of this Court in above‑referred election appeal in favour of the appellant therein whose nomination papers were rejected on the sole ground that his degree was not recognized by the University Grants Commission.

8. For the reasons stated above, we are unable to agree with the finding of Returning Officer that the appellant is not a graduate. This appeal is accepted, impugned order is set aside and the appellant shall be deemed to be a validly nominated candidate. The concerned Returning Officer shall publish his name in the list of candidates.

9. However, it is observed that if a loosing candidate files any election petition after the elections, the same shall be decided on its merits after framing of issues and recording of evidence without influenced by this Order. H.B.T./A‑672/L Appeal accepted.