2019 C L C 261
[Balochistan]
Before Muhammad Ejaz Swati, Jamal Khan Mandokhail and Nazeer Ahmed Langove,
JJ
Mir SHOAIB NOSHERWANI ----Petitioner
Versus
Mir MUHAMMAD ISMAIL PEERAKZAI and 5 others ----Respondents
C.P. No.310 of 2013, decided on 21st June, 2018.
Representation of the People Act (LXXXV of 1976) ---
----S. 99(cc) ---Conduct of General Elections Order [7 of 2002] Art. 8- A---False declaration --
-Disqualification ---Fake degree---Petitioner was aggrieved of rejection of his nomination
papers by Returning Officer which was maintained by Election Tribunal ---Validity ---
Petitioner was not only failed in examination but record was also tampered with by him as a result, Disciplinary Committee decided matter against petitioner and he was disqualified t o
appear in examinations for three years ---Petitioner did not challenge decision of Disciplinary
Committee and same had attained finality ---Petitioner was not only ineligible to contest
elections earlier in year 2002 but he had given false declaration with regard to his Bachelor's
degree and till date insisted that he passed double B.A. ---Petitioner could not produce any
B.A. passed degree earlier in year 2002 which itself reflected that he was not righteous, honest or Ameen person at the time of filing of nomination papers to contest earlier elections
in year 2002--- Courts/Tribunals were empowered to declare any person as such ---Petitioner
used fake documents not only in year 2002 but also in year 2008 therefore, rejection of his nomination papers vide orde r in question was based on proper appreciation of law and facts --
-High Court declined to interfere in the matter as petitioner intentionally misrepresented his
educational qualification in his nomination papers, thereby ---Constitutional Petition was
dismis sed in circumstances.
PLD 2016 SC 97; PLD 2013 Lah. 552; PLD 2008 SC 735; PLD 2016 Sindh 107 and
2017 SCMR 206 ref.
Farooq Ahmed for Petitioner.
Zahid Muqeem Ansari for Respondent No.1.
Shaihaq Baloch, Additional A.G., for Official Respondents.
Date of hearing: 2nd May, 2018.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The nomination papers of the petitioner for
contesting election of Provincial Assembly from PB -46 Kharan held in 2013 (the election)
were rejected in Election Appeal No.125 of 2013 by the Elect ion Tribunal Balochistan,
Quetta vide judgment dated 17th April 2013 (hereinafter the "impugned judgment"). The
relevant whereof is reproduced herein below:
"Heard the learned counsel and perused the available record. In the nomination form the respondent No.1 has mentioned his academic qualification as BA. The "transcript
of study" dated March 24, 2007 issued by the University of Balochistan (at page 23) reveals that the respondent No.1 has passed the "Bachelor of Arts" (BA) annual examination of 2006 in first attempt by obtaining 498 marks out of 800. The record also reveals of an election petition No.3/2002 filed by Muhammad Ashraf Qambrani whereby the election of respondent No.1 from PB -46 Kharan was challenged on the
ground that the appellant was not possessing the required qualification and he was declared 'failed' in all the subjects of BA by the University of Punjab under Roll No.061671. During the proceedings of the election petition No.03/2002 the Deputy Controller (Secrecy Branch) Punjab Universit y Lahore on court notice and got
recorded his statement on oath which is available on record at page -35. The statement
of the Deputy Controller (Secrecy Branch) Punjab University Lahore reveals that the respondent No.1 was declared unsuccessful in the B.A. annual examination 2002
under Roll No.061671. After announcement of the result the respondent No.1 applied for rechecking of Pakistan Studies and English language papers. Rechecking reveals that the record has been tampered with, and the inner sheets of t he answer sheets were
replaced. The respondent No.1 has issued a charge sheet and was called to appear
before the Disciplinary Committee, but he did not appear. The Disciplinary Committee decided the matter against the respondent No.1 and he was declared n ot to
appear in the exam for three years. Though the election Petition No.03/2002 was not finally decided by the Election Tribunal and the same was withdrawn without any findings, but the fact remains that the respondent No.1 had made an incorrect statemen t/declaration in the nomination form of the election of 2002 in respect of his
academic qualification. The respondent No.1 has not challenged the decision of the Disciplinary Committee of Punjab University Lahore before any forum rather on the contrary the respondent No.1 again took BA examination in the year 2006 from
University of Balochistan. In these circumstances, the respondent No.1 cannot be held as a righteous, honest and Ameen person within the purview of Article 62(f) of the Constitution of the Is lamic Republic of Pakistan."
2. Learned counsel for the petitioner contended that the petitioner has not contested the
election, but wants to remove the stigma placed against his name vide impugned judgment. He contended that statement of Muhammad Akram Deputy Controller Secrecy Branch Punjab University Lahore was recorded in Election Petition No. 03 of 2002, but the said petition was dismissed as withdrawn vide order dated 22nd June 2006, therefore, in absence of any findings on merit, the statement render ed therein under the law cannot be made basis
for rejection of nomination papers of the petitioner from election 2013; that the petitioner also contested election in 2008, but no such objection was raised; that the findings of the
learned Election Tribunal to the effect that "petitioner has made a false statement/declaration
in his nomination papers regarding his educational qualification, is based on presumptions,
inferences and surmises and is, therefore, unsustainable in law; that nomination paper of the
petitioner was rejected on the ground that in general election 2002, he had given false declaration with regard to his bachelor decree, but during said period, all objections raised
against his candidature on the same ground were rejected by the competent forum, which has
not been assailed further, therefore, in the election 2013, the past closed transaction cannot
be agitated; that the petitioner passed his bachelor degree for second time while changing the subjects and passed the examination under Roll N o.18601 from the University of
Balochistan; that the petitioner has also clarified his position while filing reply to the objections before the Returning Officer; that the appellate Tribunal has failed to consider the documents on record in its true perspe ctive and misconstrued the law. He placed reliance on
the case law reported in PLD 2016 SC 97, PLD 2013 Lahore 552, PLD 2008 SC 735, PLD 2016 Sindh 107 and 2017 SCMR 206.
The learned Additional Advocate General assisted by the learned counsel for the
respondent No, 1 supported the impugned judgment and contended that the petitioner had
given false statement in the General Election of 2002. While contesting the election for
Member of Provincial Assembly (MPA) from PB -46 Kharan with regard to his bachelor
degree (BA); that the bachelor degree was condition precedent for contesting the election of
MPA in the year 2002; that once the candidate has been found guilty of making false
declaration with regard to bachelor degree and that cannot be removed by afflux of time; that the learned appellate election tribunal has passed the impugned judgment in accordance with law, which warrants no interference.
3. We have heard the learned counsel for the parties and perused the record. The
petitioner filed his nomination papers in the General Election of 2002 and was declared as returned candidate. Admittedly, filing of bachelor degree in view of section 99(cc) of the Representative of the People Act, 1976 ('the Act of 1976') and Article 8- A of the Conduct of
General Electi on Order, 2002 ('the Order, 2002') was a condition precedent, that 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 i n 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). Undisputedly the petitioner contested the general elections of 2002 for Provincial Assembly from PB -46 Kharan on the basis of his bachelor degree allegedly issued
by Punjab University, Lahore under Roll No.061671 (the fake degree) and was declared as returned candidate. His candidature was challenged in e lection petition No. 03 of 2002,
wherein statement of Muhammad Akram Deputy Controller Secrecy Branch, Punjab University, Lahore was recorded. The relevant is reproduced herein below:
"I am posted as Deputy Controller Secrecy in the Examination Branch Punjab University Lahore. I deal with the examination matters pertaining to the record. As per our office record, Mr. Shoib Khan was allotted Roll No. 061671 for the B.A. Annual Examination -2002 and he has been declared unsuccessful/fail in said exam.
He was issued Detail Marks Certificate Ex -P/1, which tally's with my record Ex -P/2
and then a gazette notification was issued which is Ex -P/3 and the name of respondent
No.1 Shoib Khan is at S .No. 094646 of the Gazette and the roll number of the
respondent is also mentioned in the Gazette which is 061671. After announcement of
the result, respondent No.1 applied for rechecking of Pakistan Study and---list Language papers. After rechecking of th e papers, it was revealed that the record has
been tampered with. Then the matter was referred by the Controller Examination
Punjab University Lahore to the Disciplinary Committee. During inquiry, it was
revealed that the inner -sheets of the answer sheet h ad been replaced. Then respondent
No.1 issued a charge sheet and he was called to appear before the Disciplinary
Committee but he did not appear. Then the Disciplinary Committee decided the matter against Shoib Khan Ex -parte and he was declared disqualified to appear in the
exam for three years."
4. From the above, it reveals that the documentary evidence Ex.P/1 to Ex.P/3 produced
reveals that petitioner was not only "failed", but record was also tampered with, as a result, the Disciplinary Committee decide d the matter against the petitioner and he was disqualified
to appear in the exam for three years. The petitioner has not challenged the decision of the Disciplinary Committee, which has attained finality. The record of the case reveals that despite of abo ve facts, the petitioner was not only declared returned candidate in the election
of 2002, but he enjoyed the complete tenure as a Minister. The contention of the learned counsel for the petitioner that the findings of the Election Tribunal in Election Appeal No. 25 of 2013 on the ground that statement of Muhammad Akram recorded in the election petition No. 03 of 2002 that "BA" degree is fake, cannot be taken into consideration in Election Appeal No. 125 of 2013 as past and closed transaction, is not tenabl e. The statement and
documents produced in election petition No. 03 of 2002, are public documents within the meaning of Clause (3) of Article 85 of the Qanun- e-Shahadat Order, 1984 (the Order, 1984)
and as per Article 91 of the Order, 1984, presumption of truth was attached to the statement
of the witness and the documents Ex.P/1 to Ex.P/3, as the same were part of judicial proceedings and petitioner had also availed opportunity of cross -examination to the said
witness. The petitioner has failed to rebut the same through any cogent evidence, therefore, the undisputed admissible evidence was an ample proof against the petitioner that he was not qualified in terms of the Act of 1976 and the Order, 2002, therefore, contention of the learned counsel for the peti tioner that the disputed documents had been considered without
affording opportunity to the petitioner, is also not tenable. The objections raised by the respondent No.1 against nomination papers of the petitioner in the Election of 2013 were also resisted by the petitioner by way of filing reply, wherein he insisted that the degree filed
along with the nomination papers in the General Election of 2002 was valid, however, in the
year 2006, he passed double BA from the University of Balochistan. The degree of 2006
annexed by the petitioner along with this petition indicates that he passed his bachelor
examination in the year 2006 from the University of Balochistan, Quetta under Roll No. 18601, but no bachelor degree issued by the University of Punjab has been filed along with
the petition to support his contention that he has passed double BA. The perusal of record indicates that the petitioner was not only ineligible to contest the election for the seat of PB -
46 Kharan in the year 2002, but he had given false declaration with regard to his bachelor
degree and till date insisted that he passed double BA, but could not produce any BA passed degree in the year 2002, which itself reflects that he was not a righteous, honest or a Ameen person and at the time of fil ing the nomination papers to contest the election in the year
2002. The Courts/Tribunals in the circumstances, are empowered to declare any person as
such. The petitioner has used fake documents not only in the year 2002, but also in the year 2008, therefore, rejection of his nomination papers vide impugned judgment is based on proper appreciation of law and facts. In the case titled Malik Iqbal Ahmed Langrial v. Jamshed Alam and others, PLD 2013 SC 179, the Hon'ble Supreme Court observed as under:
"In thi s regard it is to be noted that that at the time of filing of nomination papers to
contest the election in the year 2002, the appellant produced fake and forged education certificates and the Election Tribunal had declared him to be an impostor vide judgme nt dated 26 -12-2002. It is to be noted that Article 62(1)(f), as it stood
prior to 18th Constitutional Amendment, provides that a person shall not be qualified to be elected or chosen as a Member of Majlis -e-Shoora (Parliament) unless he is
sagacious, righ teous, non -profligate, honest and ameen. It is clear from the plain
reading of the said Article that there is no restriction upon the Court/Tribunal to declare any person to be not sagacious, righteous or ameen. Admittedly the appellant used fake documents not only in the year 2002 but also in the year 2008 and also
made false declaration making him liable to criminal action under certain provisions of P.P.C."
In Abdul Ghafoor Lehri v. Returning Officer, PB -29, (2013 SCMR 1271) the Hon'ble
Supreme Court of Pakistan observed that "a false declaration made in the nomination paper
by a candidate about his academic qualification led to a permanent embargo on the candidature for election.
In Allah Dino Khan Bhayo v. Election Commission of Pakistan (2013 SCMR 1655),
the Hon'ble Supreme Court of Pakistan made following observations with respect to the
duration of embargo on the candidature for election:
"11. ...The provisions of the said Articles when examined in the light of the judgment of this Court referred t o and reproduced herein above reveal that certain
disqualifications are removed by the afflux of time e.g. disqualification on account of conviction or removal from service. Similarly, the qualifications can be acquired by some future act of the candidate e.g. by acquiring exclusive citizenship so as to become qualified in terms of Article 62(1)(a) of the Constitution. However, with regards to a qualification in terms of Article 62(1)(f) of the Constitution, the framers of the Constitution have chosen not t o prescribe any period of time through the flux
whereof or any act or omission through which such qualification can be acquired if a candidate or a member has been held not to possess the same. Consequently, if a person, is held not to be qualified in term s of Article 62(1)(f) of the Constitution such
absence of qualification in law will haunt him forever."
5. The petitioner intentionally misrepresented his educational qualification in his
nomination papers, thereby made false statement, therefore, the impu gned judgment warrants
no interference.
In view of the above, Constitutional Petition No.310 of 2013 is dismissed. Parties are
left to bear their own costs.
MH/85/Bal
Petition dismissed.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,
let us know.