NAGHMA MUSHTAQ Versus ELECTION TRIBUNAL, PUNJAB, LAHORE Ch. Fawad Hussian and Muhammad Asif Ismaeel , Abdul Hameed Rana, Addl. A.-G. and Naeem Masood
ORDER
Naghma Mushtaq daugher of Faiz Rasool (candidate for the Constituency PP-206 Multan-XII) by filing this constitutional petition has called into question an order dated 11-12-2007 passed by respondent No.1 i.e. learned Election Tribunal, Punjab, Lahore, whereby her appeal (E.A.No.159-R/2007) against the rejection of her nomination papers for contesting the election from the said constituency had been dismissed by the learned Returning Officer, PP-206 Multan-XII vide order dated 3-12-2007.
2. Succinctly, facts giving rise to the instant petition are that the petitioner being an aspirant to become a member of Provincial Assembly submitted her nomination papers for Constituency PP-206, Multan-XII, which were rejected by the concerned Returning Officer vide his order dated 3-12-2007 on the objection raised by respondent No.3. The said order was challenged by the petitioner before the learned Election Tribunal, Punjab, vide Appeal bearing No.E.A.No.159-R/2007 which, however, was dismissed vide order dated 11-12-2007. Hence, the instant petition.
3. In support of this petition learned counsel for the petitioner strenuously contended that the Returning Officer as well as the learned Election Tribunal committed an illegality while rejecting the nomination papers filed by the petitioner; that the petitioner possessed two "Sanads" namely "Shahadat-ul-Aalia" and "Shahadat-ul-Aalmia" issued by the Dar-ul-Aloom Mehmoodia Dhandi Azeemabad, Bannu and Waqaf-ul-Madaris-al-Arbia, Gordon Town, Sher Shah Road, Multan, respectively. That the said two "Sanads" make her fully qualified to contest the said elections; that while passing the impugned orders both the above-mentioned forums failed to consider the impact of the order dated 8-7-2003 passed by the Honourable Supreme Court on C.M.A. No.1470/2003 in C.A.No.1147/2003, whereby a stay order was passed by the Honourable Supreme Court in favour of the petitioner of the said case who after being elected as an M.N.A. from Kohat was deseated by an Election Tribunal on the ground that the "sanad" possessed by him could not be equated with B.A. unless he took examination in two additional subjects.
4. Conversely, learned counsel appearing on behalf of the private respondents have opposed this petition tooth and nail, contending that the concurrent findings of the fact, returned by both the forums, cannot be upset in writ jurisdiction; that the petitioner has miserably failed to show that she is a graduate within the contemplation of Article 8A inserted into Conduct of General Elections Order, 2002 and section 99(1)(cc) of the Representation of the People Act, 1976, that the seminary/institution which allegedly issued a degree of "Shahadat-ul-Aliya" in favour of the petitioner is not a recognized institution, therefore, the Returning Officer did not commit any illegality while rejecting the nomination papers filed by the petitioner; that the other "sanad"/degree of Shahadat ul Aalmia, relied upon by the petitioner, cannot be recognized/treated as an equivalent to bachelor's degree because under the law she was required to pass English and two optional subjects equivalent to graduation level so as to qualify for contesting the elections but the petitioner has failed to pass the said subject; that the Honourable Supreme Court has settled the matter and has insisted passing two optional subjects and English courses offered at the graduation level for declaring the degrees of "Deeni" seminaries as equivalent to the bachelor degrees and that the Higher Education Commission has neither recognized the institution, the degree of which Naghma Mushtaq petitioner possessed, nor the degree it self. Said learned counsel concluded their arguments after pinning their faith on the cases of Moulana Abdullah v. Returning Officer and others 2003 SCMR 195 and Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC 962.
5. Bashir Ahmad, Deputy Director, HEC, Regional Officer, Lahore, who is present in the Court, has also supported the arguments raised by the learned counsel appearing on behalf of the private respondents. Further, he has placed on record a certificate, dated 3-1-2008 issued by Muhammad Javed Khan, Director General (Attestation and Accreditation), Higher Education Commission, Islamabad which shows that Darul Aloom Mehmoodia Dhandi Azeemabad, Bannu, which statedly issued a `Sanad' on the basis of which the petitioner is claiming herself to be a graduate, is not a recognized institution, the said certificate further stated that the "Sanad" of Shahadat-ul-Aliya possessed by the petitioner is also not recognized by the Higher Education Commission.
6. Availing the right of reply, the learned counsel for the petitioner refuted the assertions made by the learned counsel for the respondents and argued that the case-law relied upon by the learned counsel for the private respondents is not applicable to the case in hand as the same related to the interpretation of the provisions of the Local Government Laws. He has further submitted that in view of the Notifications No.F2(11)/2002-Cord., dated 29-7-2007 issued by the Election Commission of Pakistan the petitioner who is a holder of the `Sanad' of Shahadat ul Aalmia is fully qualified to contest the forthcoming General Elections. He added that the Returning Officer as well as the learned Election Tribunal, failed to appreciate the impact of the aforementioned notification.
7. To know the ropes and for proper decision of this case, a survey of the relevant law would be necessary. Besides the already existing law, relating to general elections, in the shape of the Representation of the People Act, 1976 and the relevant provisions of the Constitution of the Islamic Republic of Pakistan, Chief Executive Order No.7 of 2002 was issued by the Chief Executive of the Islamic Republic of Pakistan with the nomenclature of the Conduct of General Elections Order, 2002. For contesting the elections to be elected or chosen as a member of Majlis-e-Shoora. (Parliament) for a Provincial Assembly possession of a graduation degree by a candidate was made must inserting Article 8A into the said order which reads as under:---
8-A. Educational qualification for a 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.]"
Simultaneously, an amendment was made in section 99 of the Representation of the People Act, 1976. Amended section 99 read as under: ---
"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; ."
8. It may be pertinent to state here that in the exercise of the relevant provisions of the law a notification was issued by the Election Commission of Pakistan on 25-7-2002 in regard to the "sanads"/degrees and the institutions recognized by the University Grants Commission within the contemplation of Article 8A of the Conduct of General Elections Order, 2002. The said notification reads as under:--
"NOTIFICATION
Islamabad, the 25th July, 2002
No.D.2(11)/2002-Cord.---Whereas Article 8A of the conduct of General Elections Order, 2002 (Chief Executive's Order No.17 of 2002) provides that notwithstanding anything contained in the Constitution of Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975) the Representation of the People Act (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) .
And whereas a reference was made by the Election Commission to the University Grants Commission vide Letter No.F.2(11)/2002-Cord, dated 18th July, 2002 (copy whereof is at Annexure-I) requesting therein that the list containing the names of degrees recognized as equivalent to a Bachelor degree under the University Grants Commission Act, 1974 (XXIII of 1974) may be communicated to Election Commission.
And whereas the University Grants Commission has sent a reply to the aforesaid reference of Election Commission vide their Letter No.8-83/UGC/A&C/2002/1142, dated the 22nd July, 2002 (copy whereof is at annexure-II) in which it has been stated that final Sanad of "Shahadat-ul-Almia-fil-Uloom-ul-Arabia-wal-Islamia" awarded by the following Waqaf/Tanzeem-ul-Madaris and individual institutions has been recognized by the University Grants Commission as equivalent to M.A. Arabic/Islamic Studies.
Name of Waqaf/Tanzeem/Institution
(1) Waqaf-ul-Madaris Al-Arabia, Markazi Office Gordon Town, Sher Shah Road, Multan.
(2) Tanzeem-ul-Madaris Alhe Sunnat, Jamia Nazmia Razvia, Indron Lahori Gate, Lahore.
(3) Waqaf-ul-Madaris, Al-Salfia Hajiabad Post Code-38600, Faisalabad.
(4) Waqaf-ul-Madaris Shia, Jamia-al-Muntazar, H-Block Model Town, Lahore.
(5) Rabita-ul-Madaris-Al-Islamia, Manzoor Road, Lahore.
(6) Jamia Islamia Minhaj-ul-Quran, 368 Model Town, Lahore.
(7) Jamia Taleemat-e-Islamia, Sargodha Road, Faisalabad.
(8) Jamia Ashrafia, Ferozepur" Road, Lahore.
(9) Darul Uloom Mohammadia Ghousia Bhera, District Sargodha.
(10) Darul Uloom, Korangi, Karachi.
And whereas in the aforesaid letter the University Grants Commission has inter alia stated:---
"It may further be noted that the Sanad Shahadatul Amia fil Uloom ul Arabia Wal Islamia granted by Wafaqul Madaris and approved individual Deeni Madaris is recognized as equivalent to M.A. Arabic/Islamic Studies for teaching purpose only. However, for purposes of employment other than teaching the holders would be required to qualify in additional two subjects other than Arabic and Islamic Studies at the B.A. level."
And whereas it is expedient and in the public interest to publish the above information received from University Grants Commission.
Now, therefore, in exercise of the powers conferred upon it under Article 4 of the Conduct of General Elections Order, 2002 read with Article 9-B of the Election Commission Order, 2002 and all other powers enabling it in that behalf, the Election Commission is pleased to publish for general information the aforementioned letter dated 22nd July, 2002 received from the University Grants Commission regarding degrees recognized as equivalent to the Bachelor's degree pursuant to Election Commission's Letter No.F.2(11)2002-Cord., dated 18-7-2002."
After a few days another notification dated 25th July, 2002 was issued by Election Commission of Pakistan. The said second notification reads as under:
"NOTIFICATION
"Islamabad, the 29 th July, 2002 No.F.2(11)2002-Cord .---Whereas the information received from University Grants Commission has been notified by Election Commission vide Gazette of Pakistan, Extraordinary, dated the 25th July, 2002 containing Notification No.F.2(11)/2002-Cord, dated 25th July, 2002.
And whereas it is expedient and in the public interest to issue direction for facility of aspiring candidates for the forthcoming general elections.
Now, therefore, in exercise of powers conferred upon it under Article 6 of the Election Commission Order, 2002 (Chief Executive's Order No.1 of 2002) read with Article 8 of the Conduct of General Elections Order, 2002 (Chief Executive's Order No.7 of 2002) and in exercise of all other powers enabling it in that behalf, the Election Commission is pleased to make and promulgate the following direction:--- "that for the purpose of forthcoming general elections the holders of the `Sanad' Shahadat-ul-Almiya-Fil-Uloom ul Arabia Wal Islamia' granted by Wafaq/Tanzeem ul Madaris and approved by individual Deeni Madaris, which has been recognized as equivalent to M.A. Arabic/Islamic Studies for teaching purposes by the University Grants Commission, shall be eligible to contest the forthcoming general elections subject to fulfilment of other qualification laid down in the electoral laws/rules, within the contemplation of Article 8A of the Conduct of General Elections Order, 2002 (Chief Executive's Order, No.17 of 2002)." (Underlining is ours)
9. The first notification issued by the Election Commission makes it crystal clear that the University Grants Commission has accorded the requisite recognition and equivalence to those "sanads" and degrees, which have been issued by the institutions/seminaries mentioned in the said notification. While submitting her nomination papers the petitioner claimed herself to be a graduate within the meaning of the aforementioned law, while placing reliance on a degree/"sanad" issued by Darul-Aloom Mehmoodia Dhandi Azeemabad, Bannu. While filling up the relevant column of her nomination paper, the petitioner described her educational qualification as under:---
The institution/seminary which statedly issued a "sanad" to the petitioner admittedly does not figure in the list of the institutions recognized by the University Grants Commission for issuing Sanads equivalent to B.A. degrees. As stated above the representative of Higher Educations Commission has candidly conceded that neither the "sanad" on the basis of which the petitioner is claiming herself to be a graduate is recognized nor the institution which has issued the said "sanad" in favour of the petitioner is an approved/recognized seminary. Therefore, we do not see any illegality in the impugned orders, whereby the nomination papers tiled by the petitioner were rejected.
10. As far as the claim of the petitioner to contest the election on the basis of second "sanad" i.e. "Shahadat-ul-Aalmia-fil-Ulam-ul-Islamia wal Arabia Waqaf-ul-Madaris-al-Arabia" is concerned, we have noticed that while submitting the nomination papers the said degree was not mentioned therein. We have further gathered that according to the notification, dated 25-7-2002 issued by Election Commission of Pakistan, which is based upon a letter issued by the University Grants Commission, the degree relied upon by the petitioner is recognized as equivalent to M.A. Arabic/Islamic Study for teaching purposes only, while for contesting the election the said degree can only be used after qualifying in two additional subjects other than Arabic and Islamic Studies at the B.A. level, but the petitioner has failed even to claim that she has passed the said additional subjects. It would be apt to point out here that the question of recognition of any bachelor's degree within the contemplation of the law has to be decided by the University Grants Commission. Considering the letter of the said Commission which was referred to by the Election Commission of Pakistan in its aforementioned notification dated 25th July, 2002, the petitioner is disqualified to contest the forthcoming election even on the basis of the "Sanad" of Shahadat ul Almia.
11. As far as the second notification dated 29th July, 2002 issued by Election Commission is concerned, without giving any findings as to whether it is in consonance with the object of law as contained-in Article 8A of the Conduct of General Elections Order, 2002 or whether the said directions can override the provisions of the said law, it is sufficient to hold that the said notification was issued by the Election Commission of Pakistan for the purposes of General Elections held in 2002 as is apparent from its opening phrase which shows that the said direction was only meant for "the forthcoming General Elections". The meaning of the term "forthcoming" has been defined in the IInd Edition of Legal Thesaurus by William C. Burton as under:--- "about to happen, advancing, anticipated approaching, at hand, awaited, close at hand, coming, coming soon, destined, drawing near, due, ensuing, eventual, expected, fated, following, foreseeable, future, imminent, impending, inescapable, inevitable, in store, looming, near, nearing, nigh, on the agenda, on the docket, on the horizon, oncoming, pending, planned, predestined, predicted, projected, promised, prospective, scheduled, to come, ultimate, unavoidable, upcoming, yet to be
Associated Concepts: expectancy under a will"
That the same term i.e. "forthcoming" has been defined in Chambers 21st Century Dictionary asunder:-- "happening or appearing soon said of a person: willing to talk; communicative available on request."
The Oxford Advanced Learner's Dictionary gives the meaning of the said term as under:--- "about to happen or appear in near future".
In the background of the said survey of the dictionaries, the term "forthcoming general elections" used in the said notification dated 29th July, 2002 is relatable to the general elections which had been held in 2002. Therefore, the benefit of the said direction/concession cannot be stretched or extended for the general elections to be held for all times to come.
12. A perusal of the provisions of section 99 of the Representation of the People Act, 1976 reveals that the said section has been couched in a manner to provide qualification and disqualification separately to contest the elections to be elected or chosen as a member of an Assembly. Both the said terms have different connotations and implications. Under the first limb of the said section, a candidate for claiming himself/herself to be qualified to contest such general elections has to show that he/she is qualified to contest such elections. Therefore, during the process of scrutiny if any objection is raised against any candidate on the basis of the lack of required qualifications to contest such elections, the burden to prove such a qualification is heavier on the candidate than the objector, but unfortunately in the case in hand the petitioner has miserably failed to establish before the Returning Officer as well as before the learned Election Tribunal that she is a graduate, within the contemplation of the relevant law, which is a sine qua non for contesting the general elections. Even before us she has failed to show that she is in possession of the equivalence certificate required under the law to contest the elections. The learned counsel for the petitioner has vehemently stressed that the case-law cited by the learned counsel for the respondents is not applicable to the facts and the circumstances of the case in hand due to the reason that in the case. of Abdul Khaliq and others v. Maulvi Muhammad Noor and others PLD 2005 'SC 962 the question before the Honourable Supreme Court was regarding the qualification required to contest the elections for the seats of Nazim and Naib Nazim under the Local Government Laws but we do not see eye to with him because it cannot be perceived by any stretch of imagination that for the purposes of declaring any person qualified to contest the elections for Nazim and Naib Nazim the passing of the additional subjects for the holder of " Deeni Sanads" would be necessary but for contesting the election of Majlis-e-Shoora or Provincial Assemblies which obviously stands at higher pedestal than the posts of Nazim etc., the passing of additional subjects by holders of "sannds" issued by the "Dinee" seminaries would be dispensed with. Besides `Abdul Khaliq' case (supra), the dictum, laid down in case of Moulana Abdullah v. Returning Officer and others 2003 SCMR 195 is fully attracted to the facts and circumstances of this case. As far as the leave granting order of the Honourable Supreme Court, relied upon by the learned counsel for the petitioner is concerned the same cannot be given precedence over the final judgments of the Honourable Supreme Court. Therefore, for purposes of decision of the case in hand, we are respectfully relying upon the case-law cited by the respondents.
12. For what has been stated above, we do not see any illegality, irregularity or jurisdictional error in the impugned orders. Therefore, this writ petition is found to be devoid of any force and, accordingly, dismissed.
M.H./N-102/L Petition dismissed.