Nawabzada IFTIKHAR AHMAD KHAN BAR Versus CHIEF ELECTION COMMISSIONER ISLAMABAD

KHALIL-UR-REHMAN RAMDAY J .---Accepting his nomination as a candidate for a seat in the National Assembly of Pakistan representing Constituency No. N.A.-178 (District Muzaffargarh) and in order to satisfy the requirements of section 99-CC of the Representation of the People Act, 1976, Jamshed Ahmad Dasti respondent declared, on oath, through the nomination papers filed for the General Elections held in February, 2008 that he was holding a degree of ALSHAHADAT-UL?AALMIA from the TANZEEM-UL-MADARIS of Pakistan having acquired the said education and degree having studied at Jamia Rizwia, Sardarul Maddaras, Multan and that the said degree of Islamic Studies was equivalent to a Masters degree of any university recognized by the Higher Education Commission of Pakistan which was a successor of the University Grants Commission of Pakistan. It was also his claim that the said Jamia Rizwia was affiliated and was attached with the said TANZEEM-UL-MADARIS (AHAL-E-SUNNAT). As a result of the said election held on 18-2-2008, the said respondent was declared as the successful candidate who consequently became a Member of the National Assembly of Pakistan.

2. Nawabzada Iftikhar Ahmed Khan petitioner had also contested for the same seat through the said elections but had obviously remained un-successful. He appears not to have raised any objection to the acceptance of the nomination papers of Jamshed Ahmad Dasti respondent by Returning Officer nor to have filed any appeal against the said acceptance. He perhaps did not even file an e1L? Lion petition in terms of section 52 of the said Act of 1976 questioning the election of Jamshed Ahmad Dasti respondent but, however, filed a petition in the Lahore High Court (Multan Bench) under Article 199 of the Constitution of Islamic Republic of Pakistan bearing Writ Petition No.607 of 2008 which petition was in the nature of quo- warranto, praying for a declaration that the said respondent was not qualified to be a Member of the National Assembly since he was not a graduate praying for a consequential relief of his removal from the said office.

3. The said writ petition was dismissed in limine through an order dated 26-9-2008, inter alia, and essentially for the reason, that the said respondent had still not been notified as a returned candidate for the said constituency and had thus still not become a Member of the National Assembly and that, therefore, a writ of quo-warranto was pre mature. While dismissing the said writ petition, a mention had been made by the High Court of the statutory remedies available to the petitioner and others questioning the candidature of Jamshed Ahmad Dasti respondent for a seat in the National Assembly and that the said remedies had, however, not been availed. Needless to add that while dismissing the said petition the High Court had not at all considered the question about the genuineness or the validity of the acclaimed academic qualifications of Jamshed Ahmad Dasti respondent.

4. This petition under Article 185(3) of the Constitution has also been filed by the same Iftikhar Ahmed Khan petitioner questioning the legality of the above-mentioned impugned order of the Lahore High Court dated 26-9-2008.

5. Jamshed Ahmad Khan Dasti respondent entered appearance before this Court through Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court who submitted a concise statement/written statement/reply on behalf of the said respondent wherein it had been re-iterated that none had raised any objection to the acceptance of the nomination papers of the said respondent by the Returning Officer; that no appeal was ever filed questioning the said acceptance; that no petition had ever been filed under section 52 of the Act of 1976 challenging the election of the respondent and that since the said respondent had been actively participating in the proceedings of the National Assembly of Pakistan, therefore, the said process could not be intercepted under Article 199 of the Constitution and finally that no proof was available in support of the allegations of inadequacy of the requisite academic qualification as alleged against Jamshed Ahmad Dasti respondent.

6. The Nazim of the above-mentioned TANZEEM-UL-MADARIS, AHAL-E-SUNNAT, Pakistan (Respondent No.4) also filed a concise statement and declared that the, four alleged SANADS i.e. Alshahadatul Sanvia Aama (Matric), Alshahadatul Sanvia Khasa (F.A.), Alshahadatul Aalia (B.A.) and Alshahadatul Aalmia (M.A.) produced by Jamshed Ahmad Dasti respondent had never been issued by TANZEEM-UL?MADARIS, AHAL-E-SUNNAT, Pakistan which was an institution recognized by the Higher Education Commission for the purpose. The certificate issued by the said TANZEEM-UL-MADARIS dated 23-2-2008 and the contents thereof are reproduced below:

It had been further declared by the said respondent No.4 that these SANADS had been allegedly issued by Jamia Rizvia, Sardar-ul-Madaris, Multan which Jamia was not competent to issue any such SANADS in the name of TANZEEM-UL-MADARIS, 'AHAL-E?SUNNAT, Pakistan; that the said Jamia could only send up students to take the examination conducted by the said TANZEEM-UL-MADARIS but was not authorized to issue any SANADS: that in fact the name of the Jamia affiliated/registered with the said TANZEEM-UL-MADARIS was JAMIA RIZVIA ASHRIFUL MADARIS, Multan and that the management of JAMIA RIZVIA SARDARUL MADARIS which had allegedly issued the SANADS to Jamshed Dasti respondent was not at all affiliated or registered with the said TANZEEM-UL-MADARIS but had been deceiving the students, the concerned fora and the general public by misusing the name of TANZEEM-UL-MADARIS, AHAL-E-SUNNAT on their SANADS. It was further declared by the said TANZEEM-UL?MADARIS that the name of JAMIA RIZVIA SARDARUL MADARIS, Pakistan was not included in the list of the ten religious institutions approved or recognized by the Higher Education Commission of Pakistan.

7. The learned counsel for the petitioner had vehemently argued that Jamshed Ahmad Dasti. respondent had never attended any "DEENI MADRISSA"; that he had never received any education at any such madrissa; that it had been declared and confirmed by the TANZEEM?UL-MADARIS, AHAL-E-SUNNAT, Pakistan, that the said institution recognized by the Higher Education Commission had never issued any of the four SANADS produced by Jamshed Dasti respondent to support his claim of holding a degree equivalent to a Masters degree; that 'JAMIA RIZVIA SARDARUL MADARIS, Multan was not an institution actually registered and affiliated with the said TANZEEM-UL- MADARIS; that JAMIA RIZVIA SARDARUL MADARIS was not at all competent to issue any SANAD of the kind possessed by Jamshed Dasti respondent; that 'even Baha-ud-Din Zakariya University' where the said respondent had attempted to take the B.A. examination had declared before the Lahore High Court that the said SANADS allegedly possessed by the said respondent were bogus; that the. SANADS were forged and fabricated documents which were being used by the said respondent which even warranted his criminal prosecution and consequent punishment under the Pakistan Penal Code and finally that the said respondent who was thus a perjurer, a cheat and a dishonest man stood disqualified not to contest the elections in question but even the future elections and from being a Member of the Parliament or of any other Assembly.

8. On account of the rather serious nature of the allegations of fraud, forgery, cheating, perjury and dishonesty and of making a false statement on oath, levelled against a person holding a rather honourable office of a Member of the Parliament, we, before going into the legal and factual issues raised before us, considered it just and proper to question Jamshed Dasti respondent, who was present in Court, in terms of provisions of Order X rule 2 of the C.P.C.

9. As has been noticed above, Jamshed Dasti respondent had claimed to have successfully completed the studies for Sanvia Aama (equivalent to Matric) which was a two years course; to have successfully completed the Sanvia Khasa (equivalent to intermediate) which was another two years course; to have successfully qualified Alshahadatul Aalia (equivalent to B.A.) which meant a further course study for two years and finally to have secured the SANAD of Alshahadatul Aalmia (equivalent to M.A.) which was another two years course and he would have thus spent eight years in the said MADRISSA. The above-mentioned SANAD equivalent to Matric was allegedly awarded to him in the year 1993 and the remaining three SANADS were allegedly issued with regular intervals of two years thereafter. The final SANAD of Alshahadatul Aalmia (equivalent to M.A.) is dated 31-8-1999. This means that Jamshed Dasti respondent would have joined the said MADRISSA in the year 1991 but on our question he submitted that he had joined the said institution in the year 1994. It may be added that the said studies spreading over a period of eight years leading to the final degree equivalent to a master's degree which the said respondent had alleged to have secured, would have meant an in-depth study of the following subjects at various levels:-

"In addition to Al-Tajweed, Al-Hadith, Al-Taitheed, Al-Seeratun Nabi, Al-Fiaha, Arabic language, Al-Nahv, Al-Sarf, Reading and Comprehension of Arabic Text and English, the following subjects are also taught in graded manner at this stage:-

History of Islam, Islamic manners and behaviour, Logic, History of Arabic Literature, Al-Blagha and computer training.

Al-Tafseer, Uloomul Quran, Al-Hadith, Mutalah-ul-Hadith, Al-Tauheed, Al-Fiqha, Usool-ul-Fiqha, Al-Faraiz, Islamic History, Islamic Culture, Objectives of Islamic Shareea, Religious Sects, Arabic languages, Arabic Literature, Al- Balagha and Al-Nahv.

1.

Al-Tafseer

2.

Usool-ul-Tafseer

3.

E'jaz-ur-Qur'an

4.

Usool-ul-Hadith

5.

Mutalahul-Hadith

6.

Al-FighulIslamee

7.

Usool-ul-Da'wa

8.

Al-Sagafatuallslamiyya

9.

Al-Adyan Wal Turnq

10.

Al-Tarbiya wa Turuqual Tadress

11.

Al-Bahas Wal Manajeha

12.

Al-Uloomul Kauniyya

13.

Hafizul-Uloomul Islamee

14.

Al-Tibbul Islamee

1. ?? Al-Sahihul Bokhari

2. ?? Al-Sahihul Muslim

3. ?? Jamia-ul-Tirmizi wa Shamaail

4. ?? Sunan Abi Daweed

5. ?? Sunan Ibn-e-Maja

6. ?? Sunan Nissai

7. ?? Sharha Ma'aaniul

8. ?? Mauta Imam Malik

9. ?? Mauta Imam Muhammad".

10. The scholastic level and expertise about ULOOM-E-ISLAMEE of a person who studies all the above subjects for eight long years leading him to a degree equivalent to a master's degree could not be over emphasized. He is expected to be an 'AALIM' who should be more than well-conversant with all matters relating to the Arabic language and to the religion of Islam. But we were shocked to notice, pursuant to our questions, that the said respondent did not even know the number of verses of the Holy Quran and what to talk of the number of verses, he did not even know the number of SURAS (chapters) of the Holy Book. And when we asked him the name of the first SURA of the Holy Quran which was AL-FATIHA, he submitted that the name of the said SURA was Al-Hamd Sharif. When we asked him the name of the second SURA of the Holy Qur'an which was AL-BAQRA, his reply was that the second SURA was AL-IMRAN. One of the subjects which he was supposed to have studied at the higher secondary level was AL?TAJWEED and we were surprised to find that he did not even know the meanings of TAJWEED' or what this subject was all about. During the course of his alleged studies leading to the SANADS equivalent to B.A. and M.A., the said contesting respondent was required also to have studied TAFSIR and' when we asked him to name anyone of the TAFAASIR that he had studied, his amazing and shocking answer was, the TAFSIR of Hazrat Yousuf (A.S.).

11. While we were at the said stage, the learned Advocate Supreme Court for Jamshed Dasti respondent submitted that his client's claim in question was un-defendable whereupon the said respondent prayed for a little time which he needed to take some decision which time was granted to him. Mian Abdul Rauf, Advocate Supreme Court returned to the Court after some time and submitted that Jamshed Ahmed Dasti respondent had decided not to defend this petition; that he had further decided to resign his seat in the National Assembly and also that he had in fact already tendered his resignation to the Speaker of the National Assembly. A copy of the said resignation addressed by the said respondent to the Speaker had even been placed on record. The said copy reads as under:

"I tender my resignation from my membership of the National Assembly against NA-178, Muzaffargarh III.

(Sd.)

Jamshed Ahmed Dasti

MNA-178,

Muzaffargarh III".

12. Mian Abdul Rauf, the learned Advocate Supreme Court representing the said respondent confirmed that it was because of his disqualification i.e. not being a graduate or not holding an equivalent academic degree that Jamshed Ahmed Dasti respondent had tendered his resignation.

13. Faced with this situation, the learned counsel for the petitioner submitted that in view of the resignation tendered by the contesting respondent, this petition had borne fruit and consequently prayed that the same be disposed of accordingly.

14. The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation --- posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating ---cheating not only his own constituents but the nation at large.

15. However, on account of his confessing repentance shown, through the resignation tendered by him and also on account of the fact that we are not called upon, in these proceedings, to punish him for his above-noticed acts, we have decided to exercise restraint in the said connection. This would, however, not preclude anyone else from moving in the matter if it is so desired. And we may add that, unfortunately, he does not appear to be the only one being guilty as afore-said as just today alone, two others, namely Nazir Ahmed Jatt, M.N.A. from Vehari (a respondent in Civil Appeal No. 1673 of 2008) and one Muhammad Ajmal, M.P.A. from Faisalabad (a petitioner in Civil Petition No.2049-L of 2009) who also stood accused of having contested their respective elections on the strength of fake and bogus degrees and "SANADS" had also elected not to defend the said allegations; had chosen not even to appear before us in person and had instead tendered their respective resignations from their respective seats. And what makes it a matter of further concern to us is that the matter does not end at these three as we also have more cases coming up on our cause-list carrying similar allegations against some other legislators.

16. Such-like 'HOUSE-BREAKING' tendencies on the part of dishonest and unscrupulous individuals need to be strongly checked before the virus becomes an uncontrollable epidemic.

17. A perusal of the relevant constitutional and statutory provisions would reveal that a Returning Officer appointed under section 7 of the Representation of the People Act of 1976, is the key-man in the entire exercise of conducting an honest, a just and a fair election in accordance with law, as commanded by Article 218 of the Constitution. Needless to add that the first and the most crucial step towards the attainment of the said commanded goal is to ensure that no person who is not constitutionally and legally qualified to contest any such election is allowed to enter the arena. And for the said purpose, the provisions of section 14 of the said Act clothe the said Officer with immense powers to conduct such enquiries as he deems fit .to make sure that only the qualified persons are allowed to contest an election and no in-eligible intruders are permitted to participate in the same. A reference especially to subsection (3) of the said section 14 would demonstrate that in order to carry out the said process of screening, the Returning Officers have not been left at the mercy of anyone and he is obliged to move in the matter of his own motion without sitting there and waiting for an objector to come forward so that he could reject the nomination papers of an un-qualified person. The relevant provisions of the said sub-section read as under:--

"(3) The Returning Officer may, either of his own motion or upon any objections, [either by an elector or] [by any person referred to in subsection (1),] conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that:--

(a) the candidate is not qualified to be elected as a member;

(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;]

(c) any provision of section 12 or section 13 has not been complied with [or submits any false or incorrect. declaration or statement in any material particular]; or

(d) the signature of the proposer or the seconder is not genuine:]

18. In the present case and the like, we are not satisfied with the performance of the Returning Officers who appear not to have taken any steps at all to determine the eligibility of the concerned candidates or to determine whether the said candidates were actually possessed of the acclaimed qualifications. They need to be more careful in future.

19. And before we part with this order, we would also like to bring on record that Jamshed Dasti respondent was being initially represented before this Court by Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court who had since been appointed as an Adviser in the Federal Government in terms of Article 93, of the Constitution. We, therefore, enquired from him about the provisions which permitted him to continue to be an Advocate despite holding the said office and the matter was, on his request, adjourned to the next day with notice to the learned Attorney General and to the learned Vice-Chairman of the Pakistan Bar Council to be of assistance in the matter. Mr. Khosa, however, returned the next day to submit that he had decided not to act as an Advocate for so long as he held the said office of the Adviser and to withdraw from this case. In this view of the matter, the said question no longer remained a live issue warranting any decision thereon.

20. Since, as has been mentioned above, Jamshed Dasti respondent' had resigned his seat in the National Assembly, theref"e this petition is converted into an appeal and allowed as a result whereof all the orders and decisions rendered in the matter by the concerned authorities and even the impugned judgment of the Lahore High Court are set aside as being of no legal consequences. It may be added that the legal questions raised in this petition are being left-unanswered as having been rendered only of academic nature.

21. Copies of this order shall be sent to Secretary of the National Assembly and to the Secretary of the Election Commission of Pakistan with a direction that the Election Commission shall now proceed to conduct the bye-election of the seat vacated by Jamshed Dasti respondent in accordance with law.

22. No orders as to costs.

S.A.K./I-4/S ??????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.