INTESAR HUSSAIN BHATTI Versus VICE-CHANCELLOR, UNIVERSITY OF PUNJAB, LAHORE

ABDUL HAMEED DOGAR, C J.--- Through this judgment, we intend to dispose of Civil Petitions Nos.2 to 5 of 2008 filed against common judgment dated 19-12-2007 passed by learned full Bench of Lahore High Court, Lahore whereby Writ Petition No.11984 of 2007 filed by petitioner Intesar Hussain Bhatti was dismissed in limine whereas Writ Petition No.11872 of 2007 (filed by respondent Ch. Liaquat Abbas Bhatti), Writ Petition No.11920 of 2007 (filed by respondent Babar Sohail) and Writ Petition No.11871 of 2007 (filed by respondent Ch. Qamar Javed) were allowed.

2. Briefly, stated facts giving rise to the filing of instant petitions are that petitioner Intesar Hussain Bhatti filed nomination papers on 26-11-2007 to contest general election from constituency No.PP-107, Hafizabad. At the time of scrutiny respondents, namely, Ch. Qamar Javed, Sardar Babar Sohail and Ch. Liaquat Abbas Bhatti filed written objections alleging that in the previous general election held in the year, 2002 the nomination papers of petitioner were rejected on the ground that Bachelor degree obtained by him was found bogus which order was maintained up to this Court. However, the objection petitions were dismissed vide judgment dated 1-12-2007 and nomination papers of petitioner were accepted by the Returning Officer. Feeling aggrieved, Election Appeals Nos. 31-A, 32-A and 33-A of'2007 were filed by Ch. Liaqat Abbas Bhatti, Ch. Qamr Javed and Babar Sohail respectively before Election Tribunal, Lahore but the same were also dismissed vide judgment dated 8-12-2007. Feeling still not satisfied the respondents filed Writ Petitions before learned Lahore High Court which were allowed vide impugned judgment as stated above.

3. We have heard Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court for petitioner in Civil Petition No.2 of 2008, Malik Muhammad Qayyum, learned Advocate Supreme Court for petitioner in Civil Petitions. Nos. 3 to 5 of 2008, Messrs Saiful Malook, learned Advocate Supreme Court and Abid Saqi learned Advocate Supreme Court private respondents and Mr. Arif Raja, learned Advocate Supreme Court on behalf of University of Punjab at length and have gone through the record and proceedings of the case in minute particulars.

4. It is vehemently contended by Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court and Malik Muhammad Qayyum, learned Advocate Supreme Court that impugned judgment is totally against law, facts and norms of justice. They further contended that undue haste on the part of the University authorities in the matter of cancellation of the petitioner's degree on the complaint of a contesting candidate during election gives rise to numerous speculations, particularly when the candidate whose result is being quashed and cancelled is not even issued any notice. This act of the University is clear negation of the principles of natural justice. According to the learned counsel, it is an admitted fact that on the day of filing of nomination papers the degree obtained by petitioner was intact and not cancelled, therefore, learned Returning Officer was justified in accepting the nomination papers. It is also contended that University could not cancel or quash the degree of petitioner after four years of its issuance in view of Chapter VI of the Calendar of the University of the Punjab which provides that the order of quashing the result under paras. (2) and (3), is issued not later than three years from the date of declaration of the result of the examination concerned. The learned counsel submitted that in the BA Annual Examination 2002 a case of unfair means was registered against the petitioner and University banned the petitioner to appear till the year 2005. Feeling aggrieved, petitioner filed appeal before Vice-Chancellor, University of Punjab through Controller Examination with the request that in the year 2002 neither petitioner submitted his admission form nor his proper address or ID card was mentioned in the admission form, rather the same had been fabricated by his political rivals to keep petitioner away from the politics. It is stated that during the course of investigation of F.I.R. No. 136 of 2006 registered under sections 419/420/428/371, P.P.C. read with section 31 of the University and Boards Act, petitioner was declared innocent. They also contended that in view of Article 225 of the Constitution learned High Court had no jurisdiction to interfere with the findings of the Election Authorities under Article 199 of the Constitution. In support, they referred to the case of Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another PLD 2005 SC 52 wherein it was held that under Article 199, of the Constitution, High Court had no power to interfere with the process of election of intermediate stage or to question use correctness of the decision of the election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the Election. The provisions of Article 199 of the Constitution cannot be placed on any higher footing than those of Article 225 of the Constitution. Article 225 is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commission and thus to exclude or oust the jurisdiction of all Courts in regard to election matters. The Election Tribunals are final judges of facts as well as of law, including the interpretation of law and, it would be incorrect to say that their determinations would be without lawful authority if the High Court did not agree with them. They also placed reliance on the cases of Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396, and Muhammad Safdar Abbasi v. Aamir Yar Malik and others 2004 SCMR 1602. The learned counsel for the petitioner submitted that the petitioner may be allowed to contest the election and the respondents, if so desired, may avail remedy before Tribunal as envisaged by section 52 of the Representation of the Peoples Act, 1976. In support, they referred to case of Ch. Nazir Ahmed and others v. Election Commissioner and others PLD 2002 SC 184.

5. On the other hand, M/s. Saiful Malook, learned Advocate Supreme Court and Abid Saqi, learned Advocate Supreme Court for private respondents controverted the above contentions and supported the impugned judgment. According to them, the Bachelor's Degree on the basis of which petitioner Intesar Hussian Bhatti wanted to contest election stood cancelled, as such he could not contest election. They referred to judgment of this Court reported as Intisar Hussain v. Akhtar Hussain 2003 SCMR 204 and contended that in the General Elections 2002 the nominations papers of the petitioner were rejected by the authorities on the ground that the bachelor degree relied upon by the petitioner was found to be bogus. It is further contended that learned Election Tribunal while deciding the Election Appeals did not take into account the above aspect of the matter. It is also stated that petitioner was disqualified for appearing in any examination to be held by the University of the Punjab for a period of three years from 2002 but he managed to appear in First annual examination 2003 under Roll No.116777 and obtained degree by adopting deceitful means which was subsequently cancelled by the University.

6. Mr. Arif Raja, learned Advocate Supreme Court for Punjab University stated that petitioner submitted his admission form for BA Annual Examination, 2002 and Roll No.26938 was issued to him. According to him on 26th April, 2002 an impersonator was identified by the Superintendent of Examination Center and a case of unfair means was registered against him and he was disqualified for three years on 28-10-2002. He further contended that petitioner was not eligible to appear in any examination in the University till 2005 but he, through fraudulent means, changed the spellings of his name from `Intsar to `Intesar' and' appeared under Roll No.116777 and passed BA Examination. He submitted that on 29-11-2007 an application was moved by respondent Babar Sohail for cancellation of degree issued to petitioner and the matter was referred by Controller of Examination to concerned Branch whereupon it transpired that the degree had been obtained fraudulently and with the concealment of facts. He further submitted that on the recommendations of Assistant Controller of Examinations and Deputy Controller of Examinations the degree issued in favour of petitioner was quashed by Vice-Chancellor on 7-12-2007. According to him, since he was not eligible, the fraud and forgery committed by the petitioner was patent on the face of record, which did not call for any inquiry or investigation.

7. It is pertinent to mention that in the case of Intesar Hussain (supra) a specific plea was taken by learned counsel appearing on behalf of petitioner that he had cleared Annual Examination, 1992 under Roll No.18954 but due to inadvertence his result was shown as cancelled but subsequently, he was declared successful having obtained 286 marks and the notification was issued on 16-2-1993. On perusal of record, it is revealed that in the BA Annual Examination, 1992 the said Roll No.18954 was allotted to Miss Attiya Hameed Niazi and not to the petitioner. The petitioner appeared in BA Annual Examination, 2002 under Roll No.26938 and a case of unfair means of impersonation in Islamic Studies (Paper B) was registered against him on the report of Center Superintendent as a result of which he was disqualified and was not eligible to appear in any Examination till 2005. The contentions of the learned counsel for the petitioner that petitioner appeared in 2003 Examination and qualified but the degree was issued in 2005, on the face of it, seems to be invalid. In the case of Tariq Mahmood v. District Returning Officer, Faisalabad and others 2001 SCMR 1991 this Court disqualified the candidate on the ground that he tried to mislead the authorities as he did not possess the basic qualification which could qualify him to contest the election. The contention of learned counsel for the petitioner that under Article 199 of the Constitution High Court has no jurisdiction to interfere in the election matte' in view of bar of jurisdiction under Article 225 of the Constitution has no force as it was held by a larger Bench of this Court in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge-Returning Officer and others 1994 SCMR 1299 that High Court generally cannot interfere in the election process in the exercise of its Constitutional Jurisdiction in view of bar of jurisdiction contained in Article 225 of the Constitution,. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can invoke constitutional jurisdiction of the High Court. The view taken in the case of Javed Hashmi (supra) is not applicable in the present case. In the case of Ayatullah Dr. Imran Liaquat Hussain (supra) it was also held that legislature expects every statutory authority to act within the limits of the law and if any such authority steps out of these limits or refused to function as the law requires him to function and he proceeds to make an order not within the limits of law; such order can be declared as without lawful authority and no legal effect under Article 199. Therefore, orders passed even by election authorities which are outside the ambit of law, are not, immune from challenge before and correction by the High Court under Article 199. In the case of Lt.-Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98 the issue related to pre-election disqualification of the candidate. It was held, inter alia that since the dispute raised was not a dispute relating to or arising in connection with an election but related to the right of the person concerned from being a member of assembly and disqualification of a candidate which was overlooked by the Authorities who were responsible for properly scrutinizing a persons' right to be enrolled as a voter or his right to be validly nominated for election, the High Court was not debarred from exercising its jurisdiction. In the case of Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52, too the appellant was suffering from a pre-election disqualification which was challenged before the High Court through Constitutional Petition under Article 199. It was contended that since the matter was required to be decided only by way of election petition under section 52 of the Act, in view of the provision of Article 225 of the Constitution, therefore the writ petition was not maintainable. The contention was repelled and while relying on the case of Lt. Col. Farzand Ali (supra) it was held that since respondent was not a candidate in the election, therefore, he could not have had a recourse to sections 14 and 52 of the Representation of People Act, 1976, nor any other remedy was available to him under any law except by way of filing a Constitution Petition. It was also held in the case of Ahad Sharif alias Muhammad Ahad v. Tariq Javed 2006 SCMR 1356 that if a statute prescribes a remedy, normally the same should be adhered to but it does not mean that in a case where the order of the election functionary is patently illegal, the High Court would be debarred to exercise its constitutional jurisdiction which is much higher than the jurisdiction available to a Tribunal under a subordinate legislation. In the wake of above it thus follows that when validity of election is not challenged and the matter primarily relates to the competency and qualification or otherwise of a person to be a candidate in the election, the bar contained in Article 225 would not be attracted and it would also not apply when the Tribunal having jurisdiction has failed to exercise the same or it is improperly exercised and the person aggrieved is left without remedy at a later stage of the proceedings because a Tribunal having jurisdiction cannot do it rightly or wrongly but is bound to do rightly as has been held by this Court in the cases of (i) Naik Muhammad v. Mazhar Ali and others 2007 SCMR 112 (ii) Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307 (iii) Utility Store Corporation of Pakistan v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 (iv) Zulfikar Khan Awan v. The Secretary Industries and Mineral Development Government of Punjab 1974 SCMR 530 (v) Muhammad Hussain v. Sikandar PLD 1974 SC 139, (vi) Bardul Haque Khan v. The Election Tribunal, Dacca PTD 1963 SC 704. The case-law cited by learned counsel for the petitioner is distinguishable.

8. The entire record produced by the University shows that petitioner has been attempting through unfair means to obtain Bachelor Degree but all in vain. Learned counsel though argued at length yet could not point out any illegality or infirmity in the impugned judgment which being well-reasoned and based on cogent grounds does not warrant interference by this Court.

9. These are the reasons of our short order dated 12-2-2008, whereby these petitions were dismissed and leave to appeal was refused.

S.A.K./I-1/S Leave refused.