MUHAMMAD JAMEEL Versus AMIR YAR

SYED MANSOOR ALI SHAH, J .-

Brief facts:

1. Respondent No.1 (Ahmed Yar) filed his nomination papers for the Bye-Elections, 2010 to the National Assembly from N.A. 184 Bahawalpur-II on 20-7-2010. Petitioner, himself a candidate for the said seat from the same area, filed objections against the nomination papers filed by respondent No.1 before the Returning Officer. The nomination papers of respondent No.1 were accepted vide order dated 27-7-2010 of the Returning Officer.

2. Petitioner preferred an appeal against the acceptance of nomination papers of respondent No.1 by the Returning Officer under section 14(5) of the Representation of the People Act, 1976 ("ROPA") before the learned Election Tribunal at Lahore. The said appeal was dismissed by the learned Election Tribunal vide impugned judgment dated 3-8-2010 passed in E.A.20-A of 2010. Petitioner has assailed the said judgment of the learned Election Tribunal through this writ petition.

Arguments of the learned counsel for the Petitioner

3. It is contended by learned counsel for the petitioner that respondent No.1 is a habitual cheat and has been successfully obtaining fake and fraudulent academic degrees of various universities in the country. He submitted that in national elections held in the year, 2002, petitioner contested the elections on the basis of graduate degree of Bachelor of Commerce ("B.Com") issued by Shah Abdul Latif University, Khairpur, Sindh. Later on, the said degree vide letter dated 19-9-2002 issued by Controller of Examinations, Shah Abdul Latif University, Khairpur, Sindh, was declared to be bogus.

4. Post-election 2002, writ of quo-warranto (Writ Petition No.2972 of 2003) was filed by one Junaid. Akhtar Sandha and others against respondent No.1, which was allowed by this Court vide judgment dated 1-2-2008 declaring B.Com degree obtained, by respondent No.1 from Shah Abdul Latif University, Sindh to be bogus and debarring respondent No.1 from holding the office of Member of National Assembly. Respondent No.1 preferred an Intra-Court Appeal (I.-C.A. No.5 of 2008) against the said judgment. It was 'argued before the appellate court that as the term of National Assembly had come to an end during the pendency of the writ petition, quo warranto could not have been issued and the petition had become infructuous. Hence, ICA was disposed of vide order dated 7-5-2009 as having borne fruit on this ground alone. This brought the post election litigation for the year, 2002 to an end.

5. Learned counsel for the petitioner further submitted that in the year, 2004, respondent No.1 tried to obtain a B.A. degree from Islamia University of Bahawalpur but was declared guilty of impersonation in B.A./B.Sc 2nd Annual Examination, 2004 vide notification dated 15-1-2005 issued by the Controller of Examination, of the said University. Respondent No. 1 was also disqualified for a period of three years besides being imposed with a penalty of Rs.2,000.

6. Learned counsel for the petitioner went on to submit that for the national elections held in the year, 2008, petitioner procured a B.A. degree from University of Balochistan, Quetta. This degree was also subsequently declared to be bogus by the Controller of Examinations, University of Balochistan, Quetta vide Notification dated 19-6-2009.

7. One Mian Najeeb-ud-Din Owaisi challenged the election of respondent No.1 in the year 2008 through an election petition (E.P. No.46 of 2008). The said petition was dismissed by the Election Tribunal on 2-4-2010 on technical grounds under section 63(a) of ROPA, 1976. Mr. Owaisi challenged the same through an appeal before the august Supreme Court of Pakistan (C.A. 191-L of 2010). Notices were issued to respondent No.1 and the Registrar of the Balochistan University for 2-7-2010. On the said date Registrar of the University appeared and placed on record notification dated 19-6-2009 confirming the bogus B.A. degree of respondent No.1. Just a day before the said hearing before the Supreme Court of Pakistan, respondent No.1 tendered his resignation on 1-7-2010. The august Supreme Court of Pakistan after considering all the facts of the case did not dismiss the appeal but instead directed the Chief Election Commissioner to proceed against respondent No.1 under section 78 of ROPA. It is contended that the matter is still pending before the Chief Election Commissioner.

8. Learned counsel for the petitioner submits that the nomination papers for the national elections for the year, 2002 described the educational qualification of respondent No.1 as B.Com while the nomination papers for national elections for the year, 2008 described the educational qualifications of respondent No.1 as B.A. while in the instant Bye-Elections, 2010 the petitioner has mentioned "Educated" against his academic qualification. It is argued that respondent No.1 has knowingly and intentionally withheld his educational qualifications in order to play safe and cover his past. Additionally, respondent No.1 resigned on 1-7-2010 in order to avoid any adverse finding by the apex Court regarding his bogus B.A degree or a possible probe into his B.Com degree.

9. It is also contended that respondent No.1 failed to put up a rebuttal before the Supreme Court of Pakistan, especially relating to the B.A degree obtained from Balochistan University, Quetta. Instead of contesting the facts brought on the record respondent No.1 chose to tender resignation leaving the facts un-rebutted before the apex Court.

10. Learned counsel for the petitioner concluded that in the light of above facts, respondent No.1 stands disqualified under Articles 62 (1)(d) and (f) of the Constitution of the Islamic Republic of Pakistan, 1973. On the basis of the above, it is contended that respondent No.1 is not of good character and does not qualify the test of being righteous, honest or ameen. He placed reliance on Sajid Mandi v. Nazir Ahmed and others (PLD 2010 Lahore 312) and Ghulam Mustafa and another v. Returning Officer, Union Council Nos.71-78/Assistant Commissioner, Daska and 3 others (2001 CLC 924) in support of his contention.

Arguments of the learned counsel for respondent No. 1

11. At the outset learned counsel for respondent No.1 submitted that this Court does not have the jurisdiction to hear this case as the matter pertains to Bahawalpur Bench of this Court. He submitted that the parties, as well as, the order of the Returning Officer is from Bahawalpur. It was argued that as C.P.C. is fully applicable to writ jurisdiction and the petition ought to be heard where respondent No.1 resides i.e., the Bahawalpur Bench of this Court.

12. He further submitted that as far as B.Com degree is concerned, there is no finding of the court of competent jurisdiction regarding the said degree and referred to the order passed in ICA dated 7-5-2009 whereby writ petition filed against respondent No.1 was withdrawn as having become infructuous and the ICA was declared to have borne fruit vide order dated 7-5-2009.

13. Learned Counsel submitted that as far as B.A. degree issued from Islamia University of Bahawalpur is concerned, respondent No.1 had nothing to do with the said degree as he never applied for the same. It is also contended that respondent No.1 is not nominated in the F.I.R. and one Mureed Hussain is the accused, who is not known to respondent No.1. It is submitted that Notification dated 15-1-2005 issued by Islamia University of Bahawalpur has been challenged through suit for declaration before the learned Senior Civil Judge, Bahawalpur, which is pending adjudication.

14. Regarding the other B.A. degree issued by Balochistan University, Quetta, learned counsel for respondent No.1 contended that the Notification dated 19-6-2009 has been challenged before the learned Senior Civil Judge, Quetta and the said Notification has been suspended vide order dated 24-2-2010 of the learned Civil Judge-III, Quetta. The counsel relied on Civil Petition No.287 of 2008 titled Nawabzada Iftikhar Ahmed v. Chief Election Commissioner Islamabad and others in support of his contentions. The learned counsel also placed relevant documents mentioned above on the record during the hearing. .

15. Arguments heard. Record perused.

Jurisdiction at the principal seat of this Court.

16. The judgment under challenge is of the learned Election Tribunal, which has been passed in Lahore. Therefore, the dominant object of filing the petition arises in Lahore hence the Principal Seat of this Court has the jurisdiction to hear the matter. Reliance with advantage is placed on LPG Association of Pakistan v. Federation of Pakistan (2009 CLD 1498), Sandalbar Interprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334), Messrs Al-Iblagh Limited, Lahore v. The Copyright Board,- Karachi and others (1985 SCMR 758), Mst. Parveen Akhtar v. Director, F.I.A, Lahore and 5 others (PLD 1996 Lahore 328), Syed Ahmed Ali Rizvi and another vs. The State (PLD 1995 SC 500) and Hudabiya Engineering (Pvt.) Ltd. v. Pakistan through Secretary Interior and 6 others (1997 MLD 2086). The preliminary objection regarding jurisdiction of this court is therefore overruled. The present petition is maintainable before the principal seat of this Court.

Questions requiring determination

17. The questions for determination before this Court are:--

(a) Whether on the strength of the evidence placed before this Court, respondent No.1 passes the test of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 in order to qualify as a Member of the National Assembly? and;

(b) Whether this Court can issue a declaration to this effect under Article 62(1)(f) of the Constitution? and;

(c) Whether the decision of the learned Election Tribunal dated 3-8-2010 and of the Returning Officer dated 27-7-2010 allowing respondent No.1 to contest the elections is sustainable in law?

Summary of relevant facts necessary for determination of the above questions

18. In order to determine the above questions, the trajectory of relevant facts is as follows:

(d) Respondent No.1 who hails from Tehsil Ahmed Pur, District Bahawalpur allegedly obtained his first graduate degree i.e., Bachelor of Commerce (B.Com) in the year, 2002 from Shah Abdul Latif University, Khairpur (Sindh). This degree was declared to be bogus by the Controller of Examinations of Shah Abdul Latif University, Khairpur vide letter dated 19-9-2002 which is reproduced hereunder:--

Shah Abdul Latif University, (SALU), Khairpur, Sindh, Pakistan N. Exam/See/SALU/KHP/-237 Dated: 19.9.2002 To, Mr. Muhammad Rafique Qamar son of Malik Azeem Bakhsh Subject: VERIFICATION OF DEGREE With reference to your application dated 19-9-2002 on the subject noted above, in this connection, I am to inform you that Degree Certificate Serial No.00176 bearing Seat No.260 Annual 1997 obtained by Amir Yar son of Ahmed Yar Malik was not issued from this University, hence his Degree Certificate is Bogus (Emphasis supplied) Controller of Examinations

(e) On the basis of the above Letter, writ of quo warranto (W.P.No.2972/2003) was filed against respondent No.1. Parawise comments were filed by the Controller of Examinations on 4-11-.2003. Relevant extracts from the aforesaid comments are:--

"That in reply to the contents of this paragraph, it is submitted that the Degree Certificate bearing Serial No.00176 with Seat No.260 in the name of Amir Yar son of Ahmed Yar Malik, showing the year of 1997, dated 12-6-2000 is fake, forged and managed certificate, and does not pertain to the Shah Abdul Latif University in any manner whatsoever. The said Certificate is not issued by the Shah Abdul Lateef University to Amiryar son of Ahmedyar Malik (Respondent No.4).

The subject matter of the said forged, fabricated and managed degree is not that of the Shah Abdul Lateef University. The text, the monograms, and seals, and the signatures on the said certificate o degree are all forged, managed and fabricated of the part of the respondent No.4.

The Official Record of Shah Abdul Lateef University for the year, 1997 pertaining to faculty of commerce has been verified and according to verification no person in the name of Amir Yar son of Ahmed Yar Malik has appeared for the said examinations of Shah Abdul Lateef University . Accordingly, the photo copy of the Certificate of Degree bearing Serial No.00176 under Seat No.260 is declared to be a forged, bogus, fabricated and managed document . Shah Abdul Lateef University, Khairpur, completely disown the said certificate in toto. " (emphasis supplied)

(f) The said petition was decided against respondent No.1 vide judgment dated 1-2-2008 passed in the following manner:--

"(9) As discussed above, the verification certificate issued by Shah Abdul Lateef University as well as the stance taken by the said University in report and parawise comments, remain un-rebutted from the side of respondent No.4 as such forgery on the part of said respondent becomes evident, therefore, this Court has no other option but to accept this petition . Resultantly this writ petition is allowed and it is held that in terms of section 99(cc) of the Representation of the People Act, 1976 (Act No.LXXXV of 1976), respondent No.4 Aamir Yar was/is neither eligible candidate to contest the election for the seat of Assembly being not holder of a valid Graduation Certificate nor could/can hold the said office of Member National Assembly. It is further held that on the basis of this forged certificate, respondent No.4 can neither contest any election nor can use this forged certificate for any other purpose. So far as second part of the prayer of the petitioners (criminal proceedings for fraud and forgery) is concerned, this Court would refrain itself from passing any order on criminal side, however, this matter is left open for the appropriate forums to initiate proceedings against respondent No.4 in accordance with law." (emphasis supplied)

(g) Thereafter, allegedly an effort was made by respondent No.1 to procure B.A. degree from Islamia University, Bahawalpur in the year, 2005 which resulted in a case of impersonation against respondent No.1 resulting in issuance of Notification, dated 15-1-2005 by Controller of Examinations and Secretary Disciplinary Committee of Islamia University, Bahawalpur which is reproduced hereunder:

ISLAMIA UNIVERSITY BAHAWALPUR No.1381/CE Dated:15-1-2005 Notification Following students are found guilty of impersonation in B.A./B.Sc. IInd Annual Examination, 2004. The Disciplinary Committee in its meeting held on 11-1-2005 decided to disqualify them for a period of three years as well as cancel their examination of B.A./B.Sc. IInd Annual, 2004 and imposed the penalty of fine of Rs.2000 on each of them. S.No. Roll No. Regd.No. Name with parentage. 23 6410 04-IB.b-3235 Aamir Yar son of Ahmed Yar Deputy Controller (Exams) For Controller of Examinations And Secretary Disciplinary Committee

(h) Against the above Notification, dated 15-1-2005, a' suit for declaration has been filed by respondent No.1 before the learned Senior Civil Judge, Bahawalpur on 17-3-2008 which is pending adjudication (the copy of the plaint, showing, grounds of challenge or the order sheet showing the progress of the case has not been placed on the record by respondent No. l).

(i) Another letter, dated 10-12-2007 issued by the Controller of Examinations, Islamia University of Bahwalpur submitted before the earlier Election Tribunal (EA 55-A-2007) states:--

The Islamia University of Bahawalpur

Controller of Examinations

Facts of the case

1. Appeal No. 55-A-2007

2. Court:

1. Syed Shabbar Raza Rizvi

2. Syed Hamid Ali Shah

3. Details of the Candidate:

(i) Name of the Candidate Mr. Amir Yar Waran

(ii) Examination taken: Candidate N.A. 184 B.A.

IInd Annual, 2004

(iii) Roll No.: 6410

(iv) Registration No: 04-IB-3235

(v) Centre: Government Degree College, Chishtian

(vi) Findings: (a) The candidate was found guilty of impersonation and disqualified for three years and with a fine Rs.2000. Disqualification started from 2nd Annual, 2004 and ended on Ist Annual, 2007 (March, 2007) (Emphasis supplied)

(b) NOC not issued.

Deputy Controller (Exams)

For Controller of Examinations

(j) In the year, 2005, respondent No.1 allegedly procured a B.A. degree from University of Balochistan Quetta and on the basis of the same contested the National Elections, 2008. Once again vide Notification dated 19-6-2009 issued by the Registrar, Balochistan University, Quetta, the B.A. degree of respondent No.1 was declared to be bogus in the following manner:-

OFFICE OF THE REGISTRAR UNIVERSITY OF BALOCHISTAN, QUETTA No. 250(Acad)(09) dated 19th June, 2009 Notification It is to inform to all concern that the Academic Council in its meeting held on 17-6-2009 approved the Recommendation of UFM Committee and Cancelled the B.A. Degree of Mr. Aamir Yar son of Ahmed Yar Malik under Roll No.1693 Session Supplementary Examination 2005-2006 acquiring bogus Degree from the University of Balochistan and keeping the Authority in Dark . (Emphasis supplied) Registrar Prof Dr. Naeem Farooqui

(k) Election petition against the election of respondent No.1 in the year, 2008 was filed by one Mian Najeeb-ud-Din Owaisi which ended up before the apex Court in Civil Appeal No. 191-L of 2010. Notices were issued to respondent No.1 by the august Supreme Court of Pakistan for 2-7-2010 in the following manner:

"(5) Since this is a direct appeal under section 67(3) of the said Act of 1976, therefore, let a notice issue to respondent No.1 which notice shall be accompanied by a copy of this order and the paper book of this appeal.

(6) A notice shall also issue to the Registrar of Balochistan University to appear before this Court on the next date of hearing and to produce the complete record relating to the appearance of respondent No. l in the B.A. (Supplementary) Examination 2005-2006 under Roll No. 1693 including the admission form submitted by the said Amir Yar respondent to take the said examination.

(7) This notice and a copy of this order shall be sent to the said Registrar by fax in addition to the same being sent in due course.

(8) To come up on 2-7-2010."

(1) Judgment of the august Supreme Court of Pakistan dated 2-7-2010 records the following:--

"(2) In response to the above said notice, Registrar of Balochistan University appeared and placed on record "Final Probe Report" under the following subject for sake of convenience, following paragraphs are reproduced therefrom:

"CONFIDENTIAL

FINAL PROBE REPORT

CONFIRMATION OF B.A. RESULT/DEGREE OF EXTERNAL CANDIDATE MR. AAMIR YAR SON OF AHMED YAR MALIK R/O PARLIAMENT LODGES,

SECTOR 6-5, ISLAMABAD.

COMPLAINT REG: NO.593-1570 DATED 9-2-2008-25/3/2008

BACKGROUND OF THE CASE :-

(a) Complaints were received by the Vice-Chancellor's Secretariat one anonymous and the other from Mr. Muhammad Jamil son of Hakeem Ali r/o District Bahawalpur, Punjab, addressed to the Vice-Chancellor, University of Balochistan complaining that the B.A pass Result Card issued in favour of Mr. Aamir Yar son of Ahmed Yar Malik from University of Balochistan under Roll No.1693 Supplementary Examination 2005, obtained by the candidate fraudulently.

(b) The complainant also mentioned some more information with evidence that Mr. Aamir Yar is a professional and habitual cheater/con man. During the financial year, 1997, he received a Bachelor's Degree of Commerce fraudulently from Shah Abdul Latif University of Khairpur, Sindh, during the financial of year, 2002. Election of National Assembly Mr. Amir Yar mentioning himself as a Bachelor of Commerce and got elected as a Member of National Assembly. Again, he contested from the same Constituency (NA-184 Bahawalpur-II) on 18th February, 2008 after obtaining the Degree from Balochistan University.

The concerned authority of Shah Abdul Latif University (SALU) Khairpur, Sindh Pakistan, through Notification No. Exam/Sec/ SALU/KHP/ dated 19-9-2002, the certificate Serial No.00176 bearing Seat No.260 Annual 1997 obtained by Aamir Yar son of Ahmed Malik cancelled the same.

(c) The complainant also provided copy JUDGMENT of LAHORE HIGH COURT, BAHAWALPUR BENCH, BAHAWALPUR JUDGMENT SHEET No. Writ Petition No.2972 of 2003 date of hearing 1-2-2008, against Mr. Aamir Yar. He highlighted his (Aamir Yar) another fraud made by him with the Islamia University of Bahawaipur, Punjab, Regarding impersonation case against Mr. Ahmad Yar, letter/notice were issued to him by the Deputy Controller Examinations (Conduct) dated 10-12-2007 to the Controller Examinations of the Islamia University- of Bahawalpur, Punjab. In the letter under question, he was disqualified for three years and a fine of Rs.2000 was also imposed and his disqualification started from 2nd Annual-2004 and ended on firs} Annual 2007 (March 2007) (F/A)

FINDINGS a) Record collected] from the Registration Office of the University of Balochistan.

The record colleted from the Registration Office of the University of Balochistan, which the candidate submitted at the time of getting himself registered, was photocopy of Bank Challan dated 0th July, 2004 on account of fee deposited for the purpose of registration, photocopy of result of SSC Examination, photocopy of result of HSC Examination and photocopy of CNIC.

At the time of allotment of Registration No.A-82901 to him, he was directed to admit his NOC/Migration Certificate within 15 days, which he failed to submit. The date of birth mentioned in his result of SSC Examination is 5-2-1973, while the date of birth mentioned in his CNIC is 17-12-1966. Both the dates of births do not resemble with each other . (Emphasis supplied)

The above mentioned two (2) discrepancies were not checked/pointed out by the staff of the Registration Office of the University of Balochistan, Quetta and he was cleared to appear in the said Examination by allotting him Registration No. A-82901.

The Assistant Registrar (S/A) University of Balochistan vide letter No.218/10 Reg/04 dated 2-12-2004 requested the Controller of Examinations for withholding of the result of Mr. Aamir Yar son of Ahmed Yar Malik (on the basis of Provisional Registration at Serial No. 57 along with other 70 candidates. The Controller of Examinations marked the same to the Assistant Controller of Examinations (Results) for withholding of the results. The concerned Branch of the Examination Section ignored the directives about withholding of the results. Consequently, a Degree bearing Serial. No.044845 under Roll No.1693 dated 12-8-2006 was issued' in his favour which was a gross laxity of the concerned Branch of Examination Section (F/B)

(b) Record/information collected from the Examination (Certificate) Branch.

(b) Meeting of Unfair Means Committee:--

CONCLUSION:

(a) After obtaining all the relevant information/records from the respective Sections of the Registrar Office, Examinations (General) Branch, Examinations (Conduct), Branch, Examinations (Result) Branch and Examinations (Certificates) Branch, it is hereby concluded that lot of doubts/evidences were created regarding the involvement of the candidate under question and the officials of the above mentioned Section/ Branches of University of Balochistan, by helping the candidate with mala fide intention to appear in the said Examination and with their connivance, he succeeded to get the B.A. Degree and contested the National Assembly Election, 2008 from

Bahawalpur and got elected as MNA-184 Bahawalpur-II Punjab .

(b) Keeping in view the past back-ground of the candidate and available records provided by the complainant, that Mr. Aamir Yar son of Ahmed Yar Malik is a professional habitual of using unfair means to achieve his objectives/goals with the involvement of the personnel of the institutions . (Emphasis supplied)

Recommendations:

(a) In my opinion, legal advice may be obtained from the Legal Advisor of the University of Balochistan before taking any action against Mr. Aamir Yar son of Ahmed Yar Malik, Member of National Assembly NA-184 Bahawalpur-II.

(b) Inquiry team should be initiated to conduct the inquiry against involved personnel's of the University of Balochistan in this case.

(Sd.)- NOOR MUHAMMAD KHAN

Addl. Controller of Examinations

University of Balochistan

Quetta"

Dated 13th May 2008

Encl: Annexure from 1 to 97

(3) On our enquiry, the Registrar stated that University is not now claiming privilege on the report. The report has thoroughly dealt with subject noted above. It is therefore informed by the Registrar that now the matter was placed for consideration before Academic Council and after their decision, degree obtained by the respondent No.1 has already been cancelled by the University. Copy of the said notification dated 19th June, 2009 reads as under:--

"OFFICE OF THE REGISTRAR

UNIVERSITY OF BALOCHISTAN QUETTA

No.250 (Acad) (09) Dated 19th June, 2009

Notification

It is informed to all concern that the Academic Council in its meeting held on 17-6-2009 approved the Recommendation of UFM Committee and Cancelled the B.A. Degree of Mr. Aamir Yar son of Ahmad Yar Malik under Roll No.1693 Session Supplementary Examination 2005-2006 acquiring bogus Degree from the University of Balochistan and keeping the Authority in Dark (Emphasis supplied)

(Sd.) Registrar.

Prof. Dr. Naeem Farooqui"

The above notification has been issued on the recommendation of the Unfair Means Committee which is a statutory body. He further informed that recently on 28th June, 2010 respondent Aamir Yar has preferred an appeal which now shall be sent to the Syndicate, another statutory body for hearing and disposal according to law.

(m) The said Notification has been challenged by respondent No.1 before the learned Civil Court, Quetta and the above notification has been suspended vide order dated 24-2-2010.

(n) The resignation of respondent No.1 addressed to the Speaker, National Assembly dated 1-7-2010 is reproduced hereunder:-

(o) The submission of the counsel for respondent No.1 made before the august Supreme Court of Pakistan is- as follows:

"(5) On the other hand, Mr. G.N.Gohar, learned counsel for the respondent No.1 stated that respondent has tendered his resignation which has been accepted as per Notification dated 1st July, 2010 under the signatures of the Secretary of National Assembly, copy of the resignation has not been placed on record in order to ascertain the circumstances under which he has tendered resignation. However, prima facie, it seems that apprehending a verdict of this Court, on the question of degree possessed by him he has submitted resignation ." (Emphasis supplied)

(p) The Judgment passed against respondent No.1 is as follows:--

"(8). In instant case we are of the opinion, that in view of given facts and circumstances of the case which have been reproduced hereinabove prima facie, it appears that the matter is required to be dealt with by Chief Election Commissioner in accordance with the provision of section 78 of the ROPA, 1976 etc. details of which have already been mentioned in above judgment. Therefore, in discharge of our constitutional and legal duty, we direct the Chief Election Commissioner to proceed accordingly against respondent No.1 Aamir Yar following the observations already made in the judgment ." (Emphasis supplied)

19. From the record placed before the learned Election Tribunal and this Court the following evidence has come to fore:

(i) Letter dated 19-9-2002 issued by the Controller of Examinations of Shah Abdul Latif University, Sindh declaring the B.Com degree of respondent No.1 as bogus. The said letter has not been challenged till date by respondent No.1 and therefore still holds the field. This alone is sufficient to tarnish the high standards laid down in Article 62(1)(f) of the Constitution.

(ii) Notification dated 15-1-2005 issued by Islamia University, Bahawalpur, declares respondent No.1 guilty of impersonation and cancels his B.A degree. This notification still holds the field and pendency of the suit does not weaken or lessen the strength of the Notification.

(iii) Notification dated 19-6-2009 issued by Balochistan University, Quetta has declared the B.A degree of respondent No.1 to be bogus. This fact was reconfirmed by the Registrar of the University before the apex Court (as mentioned above). Counsel for respondent No.1 appearing before the apex Court did not rebut or deny the veracity of the statement made by the Registrar. He also failed to rebut the findings of the FINAL PROBE REPORT which goes untouched. "The date of birth mentioned in his result of SSC Examination is 5-2-1973, while the date of birth mentioned in his CNIC is 17-12-1966." Counsel for respondent No.1 did not controvert the contents of the Final Probe Report. The issue regarding the wrong date of birth remains unchallenged.

(iv) Order of the learned Civil Judge, Quetta dated 24-2-2010 whereby notification dated 19-6-2009 was suspended pales into insignificance after the petitioner failed to defend himself before the apex court and instead resigned from the membership of the National Assembly which amounts to a confession.

(v) The official record of three Universities spread over three different provinces in the country carries presumption of correctness under Article 92 of the Qanun-e-Shahadat Order, 1984 and unless the same is dislodged by convincing evidence or by a court of competent jurisdiction the said Letter and Notifications hold the field especially Letter dated 19-9-2002 issued by Shah Abdul Latif University, Sindh. Reliance is placed on Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others (2004 SCMR 1602), Tanvir Ashraf v. Ch. Riasat Ali and 5 others (2004 YLR 659), Mureed Hussain v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 2 others (2005 YLR 1556) and Ahmad Ashraf v. University of the Punjab, Lahore and 2 others (1996 MLD 1064).

(vi) Respondent No.1 in his nomination papers submitted from NA-184 Bahawalpur-II for the National Elections, 2002 declared his educational qualification to be B.Com. But the nomination papers submitted by respondent No.1 for the National Elections, 2008, declared the educational qualification to be B.A. (B.Com. is not mentioned). While the latest nomination papers for the Bye-Elections, 2010 describes the qualification to be `Educated', conveniently ignoring both B.Com. and B.A. degree which the counsel for the respondent No.1 reiterated before this Court are validly held by respondent No.1. The conduct of the respondent No.1 in giving different educational qualifications in different nomination papers shows intentional non-disclosure of his educational qualification without any plausible reason. The mention of the word `educated' instead of the degree allegedly obtained by respondent No.1 casts a dark cloud of suspicion on the sense of fairness and honesty of the respondent No.1. This cuts a sorry figure of respondent No.1.

(vii) The resignation of the respondent No.1 a day before the hearing before the apex Court is no less than a confession of repentance. The august Supreme Court of Pakistan also observed in its judgment, dated 2-7-2010.

"However, prima facie, it seems that apprehending a verdict of this Court, on the question of degree possessed by him he has submitted resignation."

(viii) Registrar of Balochistan University appeared before the apex Court and placed on record "Final Probe Report" and the final notification dated 19-6-2009 certifying that the degree of the respondent No.1 is bogus. This was not rebutted by the counsel for respondent No.1. No mention of the civil suit filed by respondent No.1 was made before the Supreme Court of Pakistan. In order to avoid an adverse order` respondent No.1 thought it best to tender resignation. The trick played by respondent No.1 was to camouflage the deeds of the past, with the desire to take a fresh start by washing the old sins. But past cannot be buried through .a stroke of a pen in the shape of a resignation. The past in this case has come to haunt respondent No.1 especially when fresh nomination papers for the same seat were filed by respondent No.1 within twenty days thereafter for Bye Elections, 2010. This leave little room with this Court but to draw a negative inference of the conduct of respondent No.1. Reliance is placed on Sajid Mehdi v. Nazir Ahmed and others (PLD 2010 Lahore 312).

(ix) The Supreme Court of Pakistan vide judgment dated 2-7-2010 directed the Election Commissioner to proceed against respondent No.1 under section 78 of the ROPA. Section 78 deals with penalties. Such a direction shows that the Supreme Court of Pakistan after hearing the entire history of fraud and deceit of respondent No.1 has held him guilty and therefore issued the direction to the Election Commission. No review has been filed against the said judgment 'by respondent No.1. The counsel for respondent No.1 has not reserved his right to challenge the statement of the Registrar or the reports placed on the record.

(x) After having obtained allegedly a valid B.Com degree, there was no need for respondent No.1 to go all the way to Balochistan to procure allegedly a B.A degree. This appears to be a tale of deceit, lies and dishonesty and nothing else.

20. The above irrefutable basket of evidence is before this Court. Before using it for the purpose of Article 62(1)(f) of the Constitution, it is important to first discuss the scope and nature of the said Article.

21. It is settled that Article.62(1)(f) is not self-executory, however, it can be set in motion if the court of law has convincing evidence before it. Reliance is placed on Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265), Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736) and Sajid Mehdi v. Nazir Ahmed and others (PLD 2010 Lahore 312).

22. By virtue of 18th Amendment the new Article 62(1)(f) reads as under: - "he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a Court of law ;" (Emphasis supplied)

23. The said Article provides qualification for membership to the National Assembly. Article 62(1)(f), post 18th Amendment means that a candidate will be considered to be sagacious, righteous, non-profligate, honest and ameen unless there is a declaration to the contrary by a court of law. "Court of law" can be any court or tribunal which decides a lis or the rights of the parties. Court is defined as "a governmental body consisting of one or more judges who sit to adjudicate dispute and administer justice. 1 "Court of law" means "Broadly, any judicial tribunal that administers the laws of a State or nation. 2 " This Court is also a "Court of law" for the purposes of Article 62(1)(f) of the Constitution and can therefore issue a declaration whether respondent No.1 is sagacious, righteous, non-profligate, honest and ameen.

1. Black's Law Dictionary--8th Edition.

2. ibid

24. Another aspect of the matter is that the nature of declaration sought under this Article i.e., declaring a person to be or not to be sagacious, honest, ameen, etc. cannot be obtained under section 42 of the Specific Relief Act, 1877 as the requisites of the said section are not fulfilled. Reliance is placed on Alavi Sons Ltd. v. The Government of East Pakistan and others (PLD 1968 Karachi 222), Messrs Ghee Corporation of Pakistan (Pvt.) Ltd. v. Messrs Ashraf and Sons through its Proprietor (1995 MLD 390), Abdur Rehman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113) and Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhry and 2 others (PLD 1961 SC 531). It, therefore, appears that only the Election Tribunal or the constitutional Courts can grant such a declaration and therefore the nature of this constitutional declaration appears to be different from the ordinary declaration sought under Specific Relief Act, 1877.

25. The next question is who should or can seek such a declaration? It is but obvious that the opposing candidate or an aggrieved voter from the constituency may want to seek such a declaration. Under the election laws (ROPA in particular), the opposing candidate has the remedy of approaching the Election Tribunal if the nomination papers of the other candidate are accepted. Subsequently, he can also challenge the decision of the Election Tribunal before this Court in writ jurisdiction (like in the instant case) or file a writ of quo warranto or an election petition after the elections. It would be odd that once the nomination papers of a candidate are accepted, the opposing candidate or an aggrieved voter files a civil suit seeking a declaration that the candidate in question is not honest or ameen. In any case, no such declaration can be sought. Therefore, declaration provided in Article 62(1)(f) can invariably be granted by the Election Tribunal or the constitutional courts while hearing a matter arising out of election laws.

26. The change brought about by the 18th Amendment in Article 62(1)(f) of the Constitution is not restrictive for the courts of law, as there are the courts that have to grant such a declaration and as reasoned above it is ordinarily the constitutional courts that will have to make such a declaration on the basis of the evidence before them.

27. The declaration envisaged under Article 62(1)(f), therefore, has a special constitutional significance. It is to ensure that only sagacious, righteous, honest and ameen enter the two Houses of the Parliament. The role of the courts is that of a GATE KEEPER. The constitutional test provided in Article 62(1)(f) has to be applied meticulously and punctiliously. Heavy responsibility lies on the courts who act as trustees on behalf of the people of Pakistan to ensure that no candidate, short of the standards prescribed in the Constitution be allowed to enter the sacred Houses of the Parliament. Any cheat slipping through the test would amount to abuse of trust reposed by the people of Pakistan in the courts besides resulting in lowering the majesty, dignity and honour of the Houses of the Parliament.

28. The constitutional courts need not wait for any declaration to be placed before them (by and large assumed to be procured from the lower courts). There is no stopping them from making such a declaration if there is evidence before them.

29. The words "sagacious....ameen" have to be understood in the general parlance. Sagacious means "showing good judgment and understanding. 3 Righteous means "morally right and good. 4 Honest means "always telling the truth, and never stealing or cheating...Not hiding the truth about something. 5 " Ameen means honest. The meanings given above are broad and wide enough to detect and catch even the smallest of taint or blemish appearing on or attached with the name of the aspiring candidate. Framers of the Constitution have intentionally kept these qualifications wide and simple in order to ensure that the best of the best make it to these sacred Houses, which in turn would guarantee progress and development of our nation.

3. Oxford Advanced Leaner's Dictionary 7th Ed.

4. Ibid

5. Ibid

30. The irrefutable evidence placed before the learned Election Tribunal and now before this Court as discussed above does not cut a picture of a man who can be called righteous, honest or ameen by any stretch of the imagination.

31. For the above reasons, I allow this petition and reject the nomination papers of respondent No. 1. Orders dated 3-8-2010 and 27-7-2010 of the learned Election Tribunal and the Returning Officer are therefore set aside.

M.B.A./M-506/L Petition allowed.