Syed ASIF AKHTAR HASHMI Versus Malik MUHAMMAD RIAZ Muhammad Haroon Mumtaz

ORDER

The grievance voiced by the petitioner in the present constitutional petition is that respondent No.1 be declared disqualified from contesting the general election and becoming a member of the National Assembly, the candidature and unofficial election of respondent No.1 be declared illegal, unlawful, null, void and of no legal effect as respondent No.1 does not possess the requisite qualification as required by section 99(1)(cc) of the Representation of the People Act, 1976 (Act No.LXXXV of 1976).

2. Briefly the facts, necessary for the disposal of this petition are that petitioner and respondent No.1 along with other candidates contested the general election held on 18-2-2008 from NA-118-Lahore-I. Respondent No.1, while filing his nomination papers, filed a bogus result card bearing serial No.9698 issued by the University of Azad Jammu and Kashmir in favour of Muhammad Riaz son of Malik Abdul Rahim roll No.13640 for BA/BSc., Annual, 2006. It is asserted that according to the unofficial results for the constituency, respondent No.1, despite his patent disability has been declared as the returned candidate. The petitioner filed a complaint before the Controller of Examinations, University of Azad Jammu and-Kashmir challenging the authenticity of the result card issued in favour of respondent No.1 by the said University. The Controller of Examinations of the said University vide letter No.1796/CE/2008 dated 23-2-2008, denied the result card issued in favour of respondent No.1. On the basis of the aforesaid letter, issued by the `Controller of Examinations, University of Azad Jammu and Kashmir, the petitioner has prayed in this constitutional petition that since respondent No.1 was not qualified to be elected as Member National Assembly, therefore, he be declared disqualified from contesting the general election and becoming a member of the National Assembly, the acceptance of the nomination papers of respondent No.1 be declared illegal, unlawful, null, void and of no legal effect, the candidature and unofficial election of respondent No.1 be declared illegal, unlawful, null, void and of no legal effect, respondent No.2 be restrained from issuing the official notification of election of respondent No.1 and the petitioner may be declared successful candidate from NA-118-Lahore-I and respondent No.2 be directed to issue the official notification to this effect.

3. We have heard the learned counsel for the petitioner and have also perused the available record. The petitioner has challenged the B.A. degree of respondent No.1, who is a returned candidate, to be a fake and fictitious. He has referred to a letter issued by the Controller of Examinations, University of Azad Jammu and Kashmir in response to the complaint lodged by the petitioner to determine the authenticity of the result card at Serial No.9698 issued in favour of Muhammad Riaz under Roll No.13640 of B.A./B.Sc. Annual Examination, 2006. The Controller of Examinations of the aforesaid University has denied the authenticity of the result card on the following reasons:--

"(1) Despite our request, the Board of Intermediate and Secondary Education, Gujranwala has not yet certified the authenticity of the intermediate certificate of the candidate.

(2) The Roll No. Slip submitted by the candidate in examination hall bears different photograph vis-a-vis admission form of this office.

(3) Various discrepancies have been found in the record of the above mentioned candidate available in the examination department of this University.

Hence in light of the above mentioned facts the Result Card Serial No.9698 issued in favour of Mr. Muhammad Riaz, Roll No.13640 of B.A./B.Sc. Annual Examination 2006 is hereby denied."

4. We have seen the verification letter issued by the Controller of Examinations, University of Azad Jammu and Kashmir which does not bear any official stamps. This verification letter requires to be proved through evidence which exercise cannot be undertaken in the constitutional jurisdiction. It is settled law that this Court can, in exercise of its jurisdiction vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, neither enter into factual controversies nor decide disputed questions of facts.

5. Even otherwise the objection on the degree of respondent No.1 should have been raised at the time of scrutiny of the nomination papers as enunciated by section 14 of the Representation of the People Act, 1976 and under subsection (5) of section 14 of the aforesaid Act, a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates. The petitioner having failed to raise objection on the nomination of respondent No.1 at the time of scrutiny of the nomination papers cannot agitate the same in this constitutional petition because the letter issued by the Controller of Examinations, University of Azad Jammu and Kashmir, on which the entire case of the petitioner is based, has to be proved by the petitioner by adducing evidence which exercise cannot be undertaken in these proceedings under the constitutional jurisdiction. The petitioner may seek his remedy at the proper available forum.

6. For what has been discussed above, this petition has no merit and the same is hereby dismissed in limine.

M.H./A-258/L Petition dismissed.