Mian NAJEEBUDDIN OWASI and another vs AMIR YAR WARAN and others

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, C J.---Instant issues relating to fake degrees have been taken up because Of a letter which has been sent by the Higher Education Commission (HE ) dated 27-3- 2013. According to information passed on to the Election Commission of Pakistan (ECP) in the letter, degrees of 54 Parliamentarians have been found fake, whereas 189 degrees of Parliamentarians have still remained un-verified for the last 2-1/2 years despite repeated reminders of ECP, including the last one of 7th February, 2013. T e Parliamentarians whose names have been mentioned therein have failed to provide their certificates to the ECP or the HEC. Consequently o 7-2-2013 the ECP pointed out to such members that failing the verification of their degrees within 15 days of the issuance of this letter the degrees will be treated as fake and criminal proceedings be initiated.

2. In response to the notice, the Secretary ECP filed reply and stated that in fact there were 69 cases in which the degrees of the Parliamentarians were found fake; details of which are as follows:- (1)Number of cases closed due to certain reasons 27 (2)Number of cases referred to DPOs/Sessions Courts concerned for initiating criminal proceedings.34 (3)Number of cases in process as the same are pending in different Courts/Tribunals08 (4)Number of cases fixed for hearing before the ECP01 Total 70* *Cases sent DPO for F.I.R. but appeal was moved which is fixed for hearing before the ECP

3. We may point out that vide our order dated 8-3-2013 passed in C.M.A. Nos.1535 and 1536 of 2013 in Civil App also Nos.191-L and 409 of 2010, this Court has already issued directions to the Courts for deciding the cases expeditiously on or before 4-4-2013; and explanation from respective IGPs have also been called for in respect of the cases where despite registration of F.I.Rs, or the complaints, no action has been taken; and issue shall be taken up after 4-4-2013.

4. We have no reason to disagree with the Secretary about the cases, which have been referred to the Sessions Court and in respect whereof F.I.Rs, were got registered and the cases which are pending before the ECP. However, we have inquired from him that whether a disqualification incurred during the course of the election for a member of the Parliament and the making of a false declaration on a nomination Form that he fulfils the conditions laid down under Articles 62 and 63 are different, because if a Parliamentarian before or after the election is disqualified on this account, he would have no right to hold the Office as a Parliamentarian/Member of the National/Provincial Assembly or the Senate and in such situation, it is obligatory upon the ECP to proceed against such person by de-notifying him. On our query, he stated that in paragraph 18 in the case of Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) direction was only given for the prosecution of such like persons: In this context, we had asked the question noted herein above and further observe that as far as prosecution is concerned, it pertains to making a false statement, which may be covered under the Representation of the People Act, 1976 or under any provision of the P.P.C., but once a person is disqualified on the basis of his own declaration under his signatures, he cannot plead or take the stand that as his prosecution is pending, therefore, he may not be de-notified. In this behalf, the ECP may look into the matter itself and after having followed the procedure, proceed according to law against such persons who themselves become disqualified by making statements, while making a mis-declaration in the nomination papers under his signatures.

5. Notwithstanding whether the condition of being a graduate or having a degree equal to the requisite academic skill was not available subsequent to the General Election 2008, and the judgment in the case of Muhammad Nasir Mahmood and others v. Federation of Pakistan through Secretary M/o Law (PLD 2009 SC 107) yet if a candidate has made a declaration in the column meant for academic qualification and declared himself to be a graduate, but subsequently, it is found that he was not a graduate then he would equally be liable to face the consequences under Articles 62 and 63 of the Constitution or the other relevant provisions of the PPC. It is further to be observed that once there is a disqualification, it is always a disqualification; therefore, while making declaration in the nomination papers, a candidate must provide, a crystal clear statement about his credentials and antecedents. There is no scope of making or providing information, which is not correct, because he is one of the persons whom the electorate of a constituency, which may be having a strength of 50 thousand, are going to elect their representative. Therefore, whatever, he possesses in terms of academic qualification, bank credits and taxes etc. He shall have to declare each and every thing required for the qualification to contest the election.

6. It is also informed by the Secretary that the names ''of these persons have been placed on the website on 31-3-2013, for information to general public. It may be noted that this Court passed judgment in the case of Rizwan Gill (ibid) announced as far back as on 15-6-2010 and thereafter the HEC on completion of the process shall have declared their degrees fake/invalid.

7. The ECP should have taken action, particularly, in view of the observation made in paragraph 18 of the judgment in the case of Rizwan Gill (ibid) and an officer ought to be appointed to follow up the matter of the persons who have filed the fake/invalid degrees but it seems that perhaps this paragraph of the judgment has not been adhered to strictly.

8. The Secretary, ECP, has submitted a compliance report (C.M.A. 1713 of 2013) in which he has also furnished details of 27 cases, which have been closed. Relevant para therefrom is reproduced herein below:--

(a) HEC subsequently declared the degree genuine07 (b)University subsequently declared the degree genuine02

(c) Period of limitation (for Senators) was elapsed 03 (d)Elected after condition of degree was lifted 04

(e) Closed due to death of respondents 02

(f) Closed pursuant to the decisions of SCP/HC/CC03 (g)Closed due to resignation of respondents 02 (h)Closed on different grounds 04

9. We have no objection on the decision of ECP, falling under categories A & B. But .As categories C to H are concerned, we may observe that for declaring a person to be disqualified, no period of limitation, as pointed out, would be relevant because such disqualification, was suffered at the time when he filed the nomination papers by making a declaration, while having a fake degree in his hand, therefore, in such cases, no time period can be prescribed. As far as the remaining cases are concerned, except the case where the death of the Parliamentarians has. Taken place, those have to be dealt with in accordance with law and the observations made hereinabove.

10. Now turning towards another category of 189 cases of the Parliamentarians where the HEC had been issuing process through the ECP but no response statedly was given by those Parliamentarians, as such in view of the letter dated 7-2-2013 they ought to have been disqualified.

However, the Secretary, ECP informs that subsequent thereto a meeting was convened in the office of the Secretary on 28-2-2013 with the representatives of the Parliamentarians headed by the then Law Minister, wherein following decisions were taken : "The method of verification of degrees as directed by the Hon'ble Supreme Court of Pakistan and followed previously will continue, which is that a request will be made by the ECP to the HEC as to whether the degrees submitted by the candidates with their nomination forms are genuine.

In case of negative report from HEC based on proof provided by the concerned University, ECP will take action in accordance with law after due notice to the candidate concerned."

11. The Chairman, HEC, states that in response to the above decision, an exercise was undertaken to verify the degrees from the concerned Universities, where the Certificates of Matriculation and FA were also filed, but were not verified because the institution placed on record the photocopies without seeing the original documents. Thus legally the University cannot verify the requisite degree. He further states that in some of the major Universities, officers were also deputed to collect the information but without success.

12. Mr. Muhammad Akram Sheikh, learned Sr. ASC appearing on behalf of Ch. Nisar Ali Khan, states that his name is mentioned in the list placed on the website and as such he filed C.M.A. No,1715 of 2013. He further states that his client has the requisite documents and is ready to satisfy the HEC, on the basis of documents, copy of which he has already delivered and another copy of the same shall be handed over to the HEC.

13. Be that as it may, we are conscious that gentlemen whose names are mentioned were members of the Parliamentarians i.e, Members of the National Assembly, Provincial Assemblies and the Senate, therefore, the HEC and the ECP shall provide them another opportunity to satisfy the requirements to verify their degrees as per the law, because if any decisive step is taken by this Court, there is every likelihood that they might loose their status retrospectively to be a Member of the National Assembly, Provincial Assembly or the Senate, notwithstanding the fact that the Assembly was dissolved after completion of 5 years. Such disqualification will commence from the date when the notification declaring them to be a successful candidate was issued by the ECP, if at that time they were not qualified as the declaration made have been found to be incorrect then they have no right to claim such status.

Therefore, in the interest of justice, we allow to all of them i.e, 189 Parliamentarians, whose names have been mentioned in the list, furnished by the HEC to the ECP, to got their degrees verified on or before 5-4-2013. Their names are available with the ECP and if they have already received notice they themselves shall approach the HEC. However, the HEC may also issue them notices, intimating them about the pendency of verification of their degrees. This exercise has to be F completed up to the date noted herein above. The ECP, in the meanwhile, shall inform the respective Returning Officers, before whom they may have tiled the nomination papers, if they are again contesting for the General Elections to give their decision in respect of their educational qualification after receipt of the decision by the HEC. Similarly, the same exercise shall be put into effect in respect of 27 Parliamentarians whose cases were closed.

14. We may again point out that the ECP must adopt a distinction in between making, of a declaration, which is against the provisions of Articles 62 and 63 of the Constitution and the process of Criminal proceedings as a result of making mis-representation. Once a person has filed a declaration under his signatures declaring that he fulfils the conditions of Articles 62 and 63 of the Constitution and he undertakes that the statement is correct and if such declaration is incorrect the ECP, shall de-notify him for such misrepresentation, retrospectively.

15. Adjourned: To be taken up on 8-4-2013 along with other cases in which directions have already been given to the trial Court as well as the DPOs for completion of the trial of Parliamentarians/Members of Provincial Assemblies etc.