2013 CLC 46
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
NIAZ MUHAMMAD ----Petitioner
Versus
MUHAMMAD AMIN and 3 others ----Respondents
Constituti onal Petition No.(S)59 of 2011, decided on 13th September, 2012.
(a) Conduct of General Elections Order (7 of 2002) ---
---Art. 8A ---Constitution of Pakistan, Art.199 ---Constitutional petition ---Maintainability ---
Disqualification from membership of Prov incial Assembly ---Bachelor's degree obtained
fraudulently ---Impersonation in examination papers ---Complainant (petitioner) contended
that accused (Member of Provincial Assembly) did not appear in the examination hall at the
time of the examination and inst ead in his place co -accused appeared and solved the papers,
therefore, the degree was obtained fraudulently ---Contentions of accused were that present
issue was an election dispute, which was triable by the Election Commission and it also
involved a factua l controversy which could not be resolved through a Constitutional petition,
and that he had obtained his Bachelor's degree by appearing in the examinations himself ---
Validity ---Report submitted by University concerned stated that original examination form of
the accused had the photographs of the co -accused affixed upon it, and that local certificate
had the photograph of the co -accused whereas name of accused had been mentioned thereon -
--Accused after getting elected appointed co -accused in a Government d epartment, which
showed that he (co -accused) had been rewarded for his services rendered ---Material available
on record undoubtedly proved that co -accused appeared in the examinations and solved the
entire papers on behalf of the accused by impersonation, succeeded in getting the degree
fraudulently, therefore, it could not be termed a valid degree ---Accused could not be
considered a graduate in such circumstances ---Accused and co -accused were equally
responsible for committing forgery and defrauding Univer sity authorities and the Election
Commission ---Regarding maintainability of present constitutional petition, documents and
material relied upon by the complainant, which were confirmed by the University authorities,
were proved documents, which could be lo oked into, while exercising Constitutional
jurisdiction ---Besides present Constitutional petition was submitted at a time when the
Election Tribunal was not functional, therefore, complainant had no alternate remedy and
promptly approached the High Court u nder Article 199 of the Constitution ---Accused had no
authority to remain as Member of Provincial Assembly and election with regard to his
constituency was declared null and void ---Election Commission was directed to de -notify the
accused forthwith and ho ld bye -election against the vacant seat and register an F.I.R. against
the accused for defrauding the Commission and using a forged document as genuine ---
Accused was directed to return all the amount received by him in the shape of salary,
allowances and o ther amounts consumed by him during his tenure as Member of the
Provincial Assembly as well as his tenure as a Provincial Minister ---University authorities
were directed to take action against accused and co -accused, including registration of
F.I.R. and cancellation of degree ---Constitutional petition was allowed accordingly.
Mst. Hazan v. The Government of Balochistan PLD 2005 Quetta 145 and Saifullah
Khan v. Hafiz Hamdullah PLD 1997 Quetta 104 rel.
(b) Constitution of Pakistan ---
----Art. 199 ---Constitutional petition ---Scope ---Public office holder ---High Court could ask a
person as to how he held a public office, if he was otherwise not entitled to hold such an
office.
Muhammad Riaz Ahmed for Petitioner No.1.
Hadi Shakil Ah med for Respondent No.1.
Muhammad Haroon Kasi, Law Officer for Respondent No.2.
Abdul Aziz Khan Khilji, Addl. A. -G. for Respondent No.3.
Nadir Ali Chalgari for Respondent No.4.
Date of hearing: 29th August, 2012.
JUDGMENT
JAMAL KHAN MANDOK HAIL, J. --- The Election Commission of Pakistan in
2007, decided to conduct general elections in the month of February, 2008. Mr. Muhammad
Amin Umrani (the respondent No.1) submitted his nomination papers against a seat of the
Balochistan Provincial Assemb ly, Constituency of PB -29, Naseerabad, on the basis of the
degree, allegedly issued to him by the University of Balochistan. The respondent No.1
contested the elections and subsequently, was declared and notified as a successful candidate.
On formation of the Balochistan Cabinet, he became the part of it as a "Minister for Excise
and Taxation Department, Government of Balochistan". Through the instant petition, the
petitioner called in question the elections of the respondent No.1 on the ground that to cont est
the elections in 2008, a candidate must be a graduate, but the degree of the respondent No.1 is
forged, therefore, he is not a graduate. To support his contention, the petitioner annexed with
his petition the examination form, submitted before the Univ ersity of Balochistan for
appearance in the exams of B.A.
It is the case of the petitioner that the respondent No.1 did not appear in examination
hall, rather in his place, Mr. Mumtaz Ali (the respondent No.4) appeared and solved the
papers, as such, su cceeded in getting the degree fraudulently. The petitioner prayed to issue a
writ of quo warranto against the respondent No.1, declaring him to be disqualified. Notice of
the petition was issued to the respondents, in response, the University of Balochista n filed its
parawise comments and on the direction of this court, they submitted a report in respect of
the examination form and the documents submitted before the examination branch. The
private respondents also submitted their separate parawise comments, denying the contention
of the petitioner.
2. Learned counsel for the petitioner stated that on coming to know about the fraud
committed by the respondent No.1, the petitioner, having no alternate and efficacious
remedy, approached this Court with a requ est to ask the respondent No.1 as to how he holds
the office in view of the established facts that his degree is forged. According to him, the
contention of the petitioner got support from the report of the University of Balochistan,
therefore, the respond ent No.1 is not entitled to retain the office. The learned counsel stated
that this Court has the power to declare the election of the respondent No.1, as null and void.
He relied upon a judgment passed in the cases of Mst. Hazan v. The Government of
Baloc histan, reported in (PLD 2005 Quetta 145) and Saifullah Khan v. Hafiz Hamdullah
reported in (PLD 1997 Quetta 104).
3. Learned counsel for the respondents Nos.1 and 4 opposed the contention and stated
that this Court has no jurisdiction to entertain the p etition for the reason that it is an election
dispute which is triable by an Election Tribunal and it also involves a factual controversy,
therefore, it cannot be resolved through a Constitutional Petition, hence the petition is not
maintainable. Learned c ounsel for the respondent No.1 argued that the degree has lawfully
been obtained from the University of Balochistan and the respondent No.1 himself appeared
and solved the papers in the exam. The learned counsel for the respondent No.4 also
supported the c ontention of the respondent No.1 and stated that he never appeared in the
examination of B.A. in place of the respondent No.1. Both the learned counsel for the
respondents Nos.1 and 4 further stated that the documents relied upon by the petitioner are
forged and have been manipulated by him in connivance with the University officials,
whereas, the degree is genuine.
4. Learned counsel for the respondent No.3 (University of Balochistan) relied upon its
parawise comments and the report and stated that the r ecord of the university reveals that the
examination form and a copy of the local certificate submitted before the examination branch
contains the name and signature of the respondent No.1, whereas photographs of the
respondent No.4 have been affixed upon them. According to him, the documents reveals that
actually the respondent No.4 appeared in the exam instead of the respondent No.1 and solved
the papers, thus, succeeded in getting the degree. The learned counsel further stated that the
University officia ls will take action against the responsible after a decision of this petition.
5. We have heard the learned counsel for the parties and have gone through the Article
8-A of the Conduct of General Elections Order 2002, which is reproduced hereinbelow:: ---
"8-A Educational qualification for a member of Majlis -e-Shoor (Parliament) and a
Provincial Assembly. --- Notwithstanding anything contained in the Constitution of
Islamic Republic of Pakistan 1973, the Senate (Election) Act, 1975 (LI of 1975), the
Repr esentation 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 p ossessing 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."
The above referred l aw provides that no person is eligible to contest the elections,
who is not a graduate. A candidate for the election to the National Assembly or the Provincial
Assembly should at least be a graduate in any discipline having a degree, from a University
recognized by the University Grants Commission. At the time of the scrutiny of the
nomination papers, of course the degree was produced by the respondent No.1 before the
Election Commission of Pakistan, duly issued to him by the University of Balochistan, but at
that time, no objection was raised from any corner. Under such circumstances, the Election
Authorities treated the degree as genuine, accept the candidature of the respondent No.1.
7. It is to be noted that the respondent No.1 claims to have appeared in the B.A. of the
year 2004 and admitted the submission of the examination form, but disputed the affixation
of the photographs of the respondent No.4 upon it. To the contrary the University of
Balochistan on query of this Court submitted its report, wher ein it has categorically been
stated that in the Secrecy Branch, the original examination forms of the respondent No.1,
having the photographs of the respondent No.4 affixed upon it, with stamp of the concerned
office. Similarly, the local certificate also having the photograph of the respondent No.4,
whereas the name of the respondent No.1 has been mentioned thereon. The respondents
Nos.1 and 4 failed to substantiate their contention, therefore, merely questioning the secrecy
of the examination branch by t hem is not enough to believe that the examination forms were
manipulated after the exam. The material on record duly supported by the original documents
and the report of the University have strengthened the contention of the petitioner. Moreover,
the fact that the respondent No.1 appointed the respondent No.4 as an "Inspector" in the
Excise and Taxation Department, shows that he has been rewarded for the services rendered.
The material produced before us undoubtedly proved that the respondent No.4 appeared in
the exams and solved the entire papers on behalf of the respondent No.1 by impersonation,
succeeded in getting the degree fraudulently, therefore, it cannot be termed as a valid degree,
nor the respondent No.1 could be considered as a graduate. The res pondent No.1 thereafter
posing himself to be a graduate, submitted the forged document, using it as a genuine before
the Election Commission of Pakistan, hence defrauded it. Under such circumstances, the
respondent No.1 was not entitled to contest the Elec tions. The respondents Nos.1 and 4 are
equally responsible for committing the forgery by defrauding the University authorities, as
well as, the Election Commission of Pakistan.
8. As regards the objection of the learned counsel for the respondent No.1, r egarding the
maintainability of the petition, we are not in agreement with him. In the light of above
discussion, it is proved that the documents and the material relied upon by the petitioners and
confirmed by the University of Balochistan need no evidenc e, as such, are proved documents,
which could be looked into, while exercising the constitutional jurisdiction. Moreover, at the
time of submission of the petition, the Election Tribunal was not functional, therefore, the
petitioner, having no alternate re medy, promptly approached this Court under Article 199 of
the Constitution of Islamic Republic of Pakistan. This Court can ask a person as to how he
holds a public office, if he is otherwise not entitled to hold such office. The case -laws relied
upon by th e petitioner support our view, therefore, the Constitutional Petition is quite
competent and this Court has the jurisdiction to look into the matter.
9. In view of what has been discussed hereinabove, we hereby accept the petition and
declare that the re spondent No.1 has no authority to remain as Member, Balochistan
Provincial Assembly, Constituency of PB -29 Naseerabad. The election with regard to this
constituency as a whole is declared null and void. The Election Commission of Pakistan is
directed to de -notify the respondent No.1 forthwith and thereafter to hold bye -election against
the vacant seat after issuing notification in this behalf. The respondent No.1 is directed to
return all the amount to the Government of Balochistan received by him in shape of Salary,
Allowances, T.A./D.A. and the amounts of Fuel and Utilities consumed during his tenure as
Member of Balochistan Provincial Assembly, as well as, Ministry of Balochistan Cabinet.
The Election Commission of Pakistan is further directed to take action against the
respondent No.1, including the registration of the F.I.R. for defrauding the Commission by
using a forged document as genuine degree. Similarly, the University of Balochistan is
directed to take action against the respondents Nos.1 and 4 , including the registration of the
F.I.R. and the cancellation of the degree. Moreover, the Secretary, Excise and Taxation
Department, Government of Balochistan, is also directed to initiate inquiry against the
respondent No.4 and take appropriate action against him accordingly.
MWA/90/Q Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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