2022 YLRN 123

BASHIR AHMED KHAN SIREWAL Versus REGIONAL PROVINCIAL ELECTION COMMISSIONER, HYDERABAD

Citation2022 YLRN 123

CourtSindh High Court

Judge(s)Muhammad Saleem Jessar and Khadim Hussain Tunio

MUHAMMAD SALEEM JESSAR, J.--- This criminal appeal is directed against the judgment dated 24.09.2013 passed by Sessions Judge, Badin in Direct Complaint No.93 of 2013, whereby the appellant was convicted under section 82 of the Representation of the Peoples Act, 1976 and sentenced to suffer R.I for two years and to pay fine of Rs. 5,000/- (Five thousands) and in case of default in payment of fine he was to further undergo S.I for two months more.

2. The facts of the case are that a Direct Complaint was filed by Mr. Atta-ur-Rehman, Regional Election Commissioner, Hyderabad against the accused Bashir Ahmed Khan, Ex. MPA, for offences under sections 78, 82, 94 of the Representation of the People Act, 1976 read with Sections 199, 200 and 471, P.P.C. The complainant in his complaint stated that the accused Bashir Ahmed Khan contested election for a seat in the Provincial Assembly of Sindh Constituency No. PS-56 and at the time of filing his nomination papers he appended a Bachelor of Arts degree so as to secure qualification eligibility for contesting the election. He was declared as returned candidate as a result of election of 2008. The degree appended along with nomination papers was sent for verification to the Higher Education Commission and who declared the same as invalid vide letter Nos. 5-3/HEC/A and A/2010 dated 21.10.2010. Therefore, pursuant to the Judgment of the Honourable Supreme Court of Pakistan in the case of Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), the accused was issued notices to appear before the Election Commission and a three members Bench of the Commission sitting in Karachi passed the order whereby it was held, that in the given situation criminal proceedings could not be initiated against the respondent/ accused, therefore; the proceedings were dropped and matter was disposed of. He has further stated that the Honourable Supreme Court of Pakistan in case of Haji Nisar Mehmood v. Mian Imran Masood (PLD 2010 SC 1089) directed the Election Commission of Pakistan to initiate criminal proceedings against the appellant under intimation to the Honourable Supreme Court and the appellant was further directed to return all salaries and allowances received as Member within two weeks and in case of failure, it was ordered to be recovered as arrears of land revenue. Therefore, the accused has committed offence punishable under sections 78, 82, 94 of Representation of the People Act, 1976 read with sections 199, 200 and 471 of the P.P.C. He, therefore, filed above complaint and prayed for taking cognizance against the accused for the afore-said offences and conclude the trial in accordance with the directions of the Honourable Supreme Court of Pakistan in "Muhammad Rizwan Gill case".

3. The complaint was registered and brought on record for the offences under sections 78, 82 and 94 of Representation of the People Act, 1976 and BWs were ordered to be issued against the accused in the sum of Rs. 50,000/- vide order dated 29.05.2013. Pursuant to the BWs issued by the trial court, accused Bashir Ahmed Khan Sirewal appeared before the trial court on 13.7.2013 and furnished surety.

4. After supplying the case papers of the case to the accused, charge Exh. 3 was framed against him on 03.08.2013 for the offences punishable under sections 78, 82 and 94 of the Representation of the Peoples Act, 1976 to which he pleaded not guilty and claimed to be tried.

5. During trial, complainant Mr. Atta-ur-Rehman, the Regional Election Commissioner, Hyderabad was examined at Exh.

5. He produced complaint at Exh. 5-A. He also produced attested photo-state copy of Higher Education Commission letter along with correspondence made with the University of Sindh along with certificate of Intermediate and matriculation and B.A. Degree of Mr. Bashir Ahmed Khan at Exh. 5-B to Exh. 5-F along with its annexures and then closed the side vide his statement Exh. 6.

6. The Statement of accused was recorded under section 342, Cr.P.C. at Exh.

7. He denied the allegations of the complainant. However, he neither examined himself on oath nor led any evidence in his defence. The learned trial Court framed the following points for determination:

1. Whether accused while filing nomination papers to contest general elections, 2008 for Constituency PS. 56 Badin, made incorrect and false declaration in respect of his educational qualification as his graduation degree has been declared as "invalid" by Higher Education Commission and Election Commission of Pakistan, hence he is proved guilty of corrupt practice punishable under section 82 of the Peoples Representation Act, 1976?

2. What offence, if any, has been committed by the accused?

After hearing learned counsel for the parties and going through the evidence brought on record, the learned trial Court answered Point No. 1 in the affirmative and convicted and sentenced the appellant as above vide the impugned judgment. Hence present criminal appeal.

7. Learned counsel for the appellant argued that Bachelor degree submitted by the appellant along with his nomination papers was genuine and such fact has been admitted by the Complainant. He further argued that main requirement in terms of section 99(I)(cc) of the Representation of the People Act, 1976 was to the extent of Bachelor degree and the same was filed by the appellant which has been admitted by the prosecution itself to be genuine and correct. He also submitted that the order itself is null and needs not to be challenged. He also filed written synopsis of his arguments.

8. From the verbal arguments advanced by Mr. Jhamat Jethanand, learned counsel for the appellant and the written synopsis submitted by him it can be gleaned that the following objections have been raised by him to the impugned judgment: a) That the Bachelor of Arts degree submitted by the appellant along with his nomination papers is genuine and the requirement of section 99(1)(cc) of the Representation of the People Act, 1976 was to that extent only. Hence the appellant has not committed any offence under section 78(3)(d) of the Act. b) The facts of Rizwan Gill and Nisar Mehmood cases are entirely different and the ratio of those cases is not attracted to the case of the appellant. c) That the complaint was not filed by authorized person as the complainant has not produced any authorization from Election Commission of Pakistan in this regard. d) The Hon'ble Supreme Court has only ordered for action against Nisar Mehmood only in the cases relied by the prosecution. e) That order dated 26.12.2011, whereby the criminal proceedings were dropped against the appellant, has not been set aside by Hon'ble Supreme Court and, hence, there was no occasion for passing another order dated 06.04.2013 and filing of the complaint against the appellant. f) The only requirement of provisions of section 12(2)(e) and section 99(cc) of the said Act was to produce degree along with nomination papers which was produced by the appellant and was admittedly declared to be genuine. g) That complainant was not author of the intermediate certificate but he produced photostat copy of such certificate which is not admissible under sections 75 and 76 of the Qanun-e-Shahadat Order. Reliance was placed on 1995 SCMR 1237; 2014 MLD 342(a) and 2014 MLD 911. h) Factum of intermediate certificate being bogus could only be proved through the official record and testimony of an official from BISE which was not done therefore presumption under Article 129(g) of the Qanun-e-Shahadat Order would be drawn against the complainant. Reliance was placed on 2007 CLC 1821. i) There is no evidence of mens rea in the complaint or in the evidence and therefore the appellant cannot be convicted in the absence of mens rea.

Reliance was placed on 1998 MLD 1358(b) and 1999 YLR 2135(b).

9. Mr. Aslam Pervaiz Khan, Assistant Attorney General, appearing for the Federation has also focused upon the Matriculation Certificate of the appellant available at Page 71of the paper book and stated that Date of Birth shown in the certificate was not verified from the record as is evident from the document (Page 71) itself. He next submits that for any candidate who wishes to appear in a Degree exam it is necessary for him to first appear in secondary (Matriculation) exam and then in Higher Secondary (Intermediate) exam and when he successfully clears the same then to move for graduation exam. According to him, when the intermediate certificate is not available with him and no justification has been brought on record for non-submission of such certificate, then subsequent document viz. Bachelor degree has no independent legs to stand upon. He has also argued that appellant was given opportunity of hearing, even in his statement recorded under section 342, Cr.P.C. before the trial Court, but he did not file any application in terms of section 165-J(vii), Cr.P.C. for calling the record from the concerned quarter to justify his innocence. He, therefore, submitted that the impugned judgment is speaking one and no illegality and irregularity has been committed by the trial Court while convicting the appellant. He, prayed that appeal may be dismissed and conviction and sentence of the appellant may be maintained.

10. Mr. Shahzado Saleem Nahiyoon, Deputy Prosecutor General, by referring Article 129 of the Qanun-e-Shahadat Order, 1984, submits that appellant was required to prove the genuineness of the documents in all respects and if one of the documents in chain is missing, then by virtue of that Article the subsequent document would be at stake as like when foundation is weak then entire structure must fall. In support of his contention, he has referred to the case of Ghulam Murtaza Jatoi v. Election Tribunal, Sukkar and others (2003 YLR Karachi 721).

11. We have heard learned counsel for the parties and have perused the record with their assistance.

12. In the present case the entire case depends on documentary evidence as neither any ocular evidence is required to prove the genuineness of the document nor any circumstantial evidence is needed in this regard. The bone of contention is that the appellant while filing his nomination papers for a provincial assembly seat viz. PS-56 also appended a Bachelor of Arts degree therewith as, at that time, only graduates were eligible to contest the elections. On the basis of the Degree filed by the appellant, he was declared eligible to contest the elections. After the elections he was declared returned candidate from the said constituency. However, the Honourable Supreme Court of Pakistan, in the case of Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) directed the Election Commission of Pakistan to get degrees of all the MNAs and MPAs verified from the Higher Education Commission. Accordingly, Election Commission of Pakistan sent copies of degrees of all the elected MPAs and MNAs to Higher Education Commission and asked members to submit matriculation and intermediate certificate for verification. It was in this background that BA degree of Mr. Bashir Ahmed Khan was verified from University of Sindh, Matriculation certificate from the Board of Intermediate and Secondary Education Hyderabad. Although the degree of B.A. and Matriculation certificate were found genuine; however, University of Sindh informed that his intermediate certificate is bogus; therefore, subsequent degree of B.A. was also declared as not valid.

13. Mr. Jhamat Jethanand, learned counsel for the appellant, put great emphasis on the fact that the B.A. degree of the appellant was found to be valid and such fact has been admitted by the complainant, therefore, the impugned judgment is liable to be set aside.

14. When superficially examined, this argument seems to have force, however, deeper appreciation of the matter exposes fallacy of the argument.

15. In this regard it needs to be examined that how a person is able to get a B.A. degree, or for that matter, any other degree equivalent to graduation. In Pakistan we have a system of education which consists of three tiers leading upto a degree i.e. Matriculation; Intermediate and Degree. In the first stage, a student is required to clear Matric exam, which is conducted by Board of Secondary Education, if he is successful, he is eligible to be awarded Matriculation Certificate. Thereafter he is eligible to get admission in Intermediate classes which are referred to as First Year and Second Year. After successfully clearing the first year and second year examinations, which are conducted by the Board of Intermediate Education, the student is entitled to get Intermediate Certificate and now he is eligible to get admission in a University and to study for a degree of BA, B.Com or B.Sc., as the case may be. This is referred to as Third Year and Fourth Year and the examinations are held by a University. Thus, it is compulsory for a student to pass Matriculation examination in order to be eligible for appearing in Intermediate examinations and for a student to get admission in a Degree class, it is compulsory for him to clear both Matric and Intermediate examinations. Without passing intermediate exams a person cannot get admission in B.A. class and if he gets admission in B.A. by any means, the same would be invalid and the degree so obtained by him would also be invalid. In the case of Haji Nasir Mehmood v. Mian Imran Masood (PLD 2010 SC 1089), the Hon'ble Supreme Court has clearly held that "the burden to prove a valid, genuine and bona fide qualification lies on the appellant which in this case could not be discharged." Now, it is to be examined whether in the present case the appellant was able to discharge this burden or not.

16. When we examine the case of the appellant in the above factual position, it transpires that the appellant appeared in Matric examination conducted by Board of Intermediate and Secondary Education, Hyderabad in the year 1968. He passed the same and such Certificate was issued to him which is available at page 54 of the paper book. Now, he was eligible to get admission in Intermediate classes. However, there is nothing on record to show that he ever appeared in Intermediate examination. Thereafter, his B.A. Degree is available on record at page 55 of the paper book. This degree shows that he appeared in B.A. exams in the year 2005 and the result was declared on 10.08.2006 wherein he was declared as successful and was issued a degree for B.A. However, the most important link in this chain i.e. the Intermediate exam result and certificate is missing. The order dated 26.12.2011 also states that the appellant was called upon to produce his certificate of intermediate, however, he (the appellant) submitted that the Board had declined to provide him the certificate on the ground that the record of Board was burnt in a fire incident. Thus, the appellant miserably failed to prove that he has successfully appeared in examinations for the intermediate certificate and passed the same as he was unable to provide any proof of the same.

17. The complainant, during his examination in chief, produced photo state attested copy of Higher Education Commission letter along with correspondence exchanged with the University of Sindh and the certificates of Intermediate and matriculation as well as B.A. Degree of Mr. Bashir Ahmed Khan (the appellant) at Exh. 5-B to Exh.5-F respectively. The board of Intermediate and Secondary Education Hyderabad has made a note upon the certificate of intermediate of Mr. Bashir Ahmed Khan as "Bogus". This clearly shows that although the appellant did not pass Intermediate examination still he managed to get a B.A. Degree. Thus, argument advance by learned counsel for the appellant with vehemence that the BA degree of the appellant was found to be genuine is not tenable on the ground that the same was obtained by unfair means.

18. So far as objection (b) above is concerned, it may be noted that the facts of the cited two cases are not relevant for the purpose of this case. In those cases only directions were given that degrees of all the MPAs and MNAs may be got verified from the relevant authorities in order to check their authenticity as some people were found to have filed fake degrees with their nomination papers.

19. In the case of Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), the Hon'ble Supreme Court gave direction to initiate action against all such persons who were accused of corrupt practices and of committing forgery and using as genuine documents which they knew or at least had reason to believe to be forged. The relevant directions of the Hon'ble Supreme Court are quoted hereunder:

"The Election Commission was directed by Supreme to initiate action against all such persons who were accused of commission of corrupt practices: of committing forgery and of genuine using, as documents which they knew or at least had reason to believe to be forged. The Election Commission shall ensure that the investigations in these matters are conducted honestly, efficiently and expeditiously and shall depute one of its Senior officers to supervise the same. The Sessions Judges to whom these trials shall then be entrusted, were also directed to conclude the same without any delay, in consonance with the spirit of the Elections laws as displayed, inter alia, by the provisions newly added to subsection (1A) of section 67 of Representation of the People Act, 1976 through the Amending Act No. IV of 2009 promulgated on 2711-2009."

20. It would be advantageous if the following passage is quoted from the judgment in the case of Haji Nasir Mehmood v. Mian Imran Masood (PLD 2010 SC 1089):

"21. In such circumstances how a visionary leadership could be emerged. The matter at hand is more fundamental and involved a crucial issue of trust. Nothing good can be expected from such fakers who not only betrayed the confidence of the voters of their Constituency but cheated them in a shameless manner. How can they watch the legitimate interest of people with a dead conscience which never pricked while defrauding the nation. They deserve exemplary punishment so that such shameful instances could not be repeated. The Election Commission of Pakistan shall initiate criminal proceedings against the appellant under intimation to this Court. The appellant is further directed to return all salaries and allowances received as a Member within two weeks, and in case of failure, it shall be recovered as arrears of land revenue. The criminal wastage of tax payer's money cannot be allowed.

The burden to prove a valid, genuine and bona fide qualification lies on the appellant which in this case could not be discharged"

21. In this regard relevant portion of section 78 is quoted hereunder:

"78. Corrupt Practice.-A person is guilty of corrupt practice if he--

(1) . not relevant

(2) . not relevant

(3) Makes or publishes a false statement or submits false or incorrect declaration in any particular material--

(a) . not relevant

(b) . not relevant

(d) in respect of his educational qualifications, assets and liabilities, or any liability with regard to payment of loans or adherence to party affiliation in subsection (2) of section 12."

22. A perusal of clause (d) of subsection (3) of section 78 of the Act clearly shows that any wrong declaration in respect of educational qualifications submitted by a candidate falls within the ambit of "corrupt practice".

23. Thereafter, Election Commission called parties including representative and advocate of Mr. Bashir Ahmed and on completion of hearing, they observed that the offence of corrupt practice has been established against appellant Bashir Ahmed Khan as he had filed invalid/fake degree and he was not qualified to contest the general elections 2008 due to lack of qualification. The Commission further directed that in pursuance of the order of the Honourable Supreme Court, a complaint under sections 78, 82 and 94 of Representatives of Peoples Act, 1976, read with sections 199, 200, 471, P.P.C. be filed against appellant Bashir Ahmed Khan and others before the concerned Sessions Judge who should take cognizance of the same and initiate proceedings in view of said sections.

24. So far as the objection regarding authorization of the complainant to file the complaint before the concerned Judge is concerned, suffice it to say that in pursuance of the directions of the Honourable Supreme Court in the above cited cases he was authorized by Election Commission of Pakistan to file complaint against Mr. Bashir Ahmed Khan and accordingly, he has filed complaint. It may be noted that the direction given by the Hon'ble Supreme Court cannot be ignored by any organ of the country.

25. So far as objection that order dated 26.12.2011, whereby the criminal proceedings were dropped against the appellant, has not been set aside by Hon'ble Supreme Court and, hence, there was no, occasion for passing another order dated 06.04.2013 and filing of the complaint against the appellant, it may be mentioned that the order passed by the Election Commission to file criminal case against the appellant and others MPAs and MNAs who were found to be involved in corrupt practices was in pursuance of the directions issued by the Hon'ble Supreme Court and has nothing to do with the order dated 26.12.2011. In fact the direction of the Hon'ble Supreme Court has an overriding effect on the order dated 26.12.2011.

26. Learned counsel for the appellant also submitted that the only requirement of provisions of section 12(2)(e) and section 99(cc) of the said Act was to produce degree along with nomination papers which was produced by the appellant and was admittedly declared to be genuine. We have already discussed the genuineness of the BA degree and the impact of the intermediate certificate being declared as "bogus", above in detail. The bottom line is that once a person is unable to prove that he has passed intermediate examination, he cannot get admission in BA. Therefore, a BA degree produced without clearing intermediate is not a valid degree at all. The submission made by learned counsel for the appellant that the BA degree of the appellant was found genuine is falsified by the letter dated October 21, 2010 addressed by Higher Education Commission to Election Commission of Pakistan (available at page 49 of the paper book) which (at page 50) clearly states that the degree of the appellant is invalid.

27. It was also contended by learned counsel for the appellant that complaint was not author of the intermediate certificate but he produced photo stat copy of such certificate which is not admissible under sections 75 and 76 of the Qanun-e-Shahadat Order. Reliance was placed on 1995 SCMR 1237; 2014 MLD 342(a), and 2014 MLD 911. In the cited case of 1995 SCMR 1237, the plaintiff was allowed to produce secondary evidence due to the reason that he has lost the originals of the documents. The suit was decreed in favour of the plaintiff, however, the appellate Court set aside the decree and judgment on the ground that the plaintiff has not proved loss of the documents, therefore, he was not entitled to produce secondary evidence. In this case the plaintiff was supposed to be in possession of the originals of the documents he intended to produce in support of his case. There is yet another aspect of the case also. When the certificate itself has been declared to be bogus, then how its author can be produced in Court.

28. In the present case, the original intermediate certificate was to be produced by the appellant himself which he failed to produce. The original intermediate certificate of the appellant was not in the custody of the complainant, therefore, the complainant could not be asked to produce the primary evidence in this case. Accordingly, the prosecution was able to produce photo copy of such certificate which was found to be bogus. Therefore, no illegality was committed by the prosecution in view of the fact that the original was not in the custody of the prosecution nor the prosecution could be asked to produce the same.

29. The next objection raised by learned counsel for the appellant was that factum of intermediate certificate being bogus could only be proved through the official record and testimony of an official from BISE which was not done therefore presumption under Article 129(g) of the Qanun-e-Shahadat Order would be drawn against the complainant. Reliance was placed on 2007 CLC 1821. Although the case relied upon is not relevant at all, the contention itself goes against the appellant. The appellant was supposed to be in possession of his intermediate certificate but he did not produce the same despite repeated opportunities being provided to him. Thus, the presumption envisaged under Article 129(g) of the Qanun-e-Shahadat Order would be drawn against him, and not against the complainant. The presumption under the said Article could only be drawn against the complainant if the document so required in evidence was supposed to be in the custody of the complainant. Since this is not the case, therefore, no adverse inference could be drawn against the complainant.

30. Lastly, the learned counsel contended that there is no evidence of mens rea in the complaint or in the evidence and therefore the appellant cannot be convicted in the absence of mens rea. Reliance was placed on 1998 MLD 1358(b) and 1999 YLR 2135(b). In 1998 MLD 1358, it was held that to establish commission of an offence, it was essential to establish mens rea and knowledge about the existence of an incriminating material as a fact. In the present case, the appellant was well aware that he is required to be a graduate to become eligible for taking part in the ensuring elections as a candidate for a provincial assembly seat and therefore, he filed a BA degree along with his nomination papers which he knew was fake. In paragraph 5 of the direct complaint it was clearly mentioned that the appellant has committed corrupt practices by appending fake degree along with his nomination papers and filed false declaration. Thus, it is clearly mentioned in the complaint that the appellant has committed an offence punishable under sections 78, 82 and 94 of Representation of Peoples Act read with sections 199, 200 and 471 of the P.P.C.

31. So far as repeal of the sections is concerned, it is an admitted fact that at the relevant time these sections were available on the statute book and their repeal at any subsequent date would not be beneficial to the appellant.

32. Learned DPG relied on the case of Ghulam Murtaza Jatoi v. Election Tribunal Sukkur and others (2003 YLR 721), wherein nomination papers of candidate were rejected on the ground that the Sanad issued by a Madrassah is not valid until such Sanad is issued by Wafaqul Madaris. However, since the facts are different, therefore, no reliance can be placed on the cited case as in the cited case there was no element of forgery involved.

33. After going through the impugned Judgment and the arguments of the learned counsel for the parties, and the case law cited before us, we are of the opinion that the impugned Judgment does not suffer from any legal infirmity or illegality, calling for interference by this Court. The impugned judgment is well reasoned and does not suffer from any misreading or non-reading of evidence. Learned counsel for the appellant is unable to show any lacuna in the impugned judg-ment justifying interference by this Court.

34. Accordingly, instant criminal appeal is hereby dismissed and the conviction and sentenced awarded to the appellant by the trial Court through impugned judgment is hereby maintained. The appellant, who was present before the Court on last date on bail is called not in attendance; therefore, the bail bond(s) executed by him and surety furnished by his surety are hereby forfeited. Let notice be issued to his surety in terms of section 514, Cr.P.C.; besides, NBW be issued against him to be executed through SSP Badin.

35. Copy of NBW against the appellant as well as notice to his surety under section 514, Cr.P.C. be faxed today to SSP Badin for compliance.

JK/B-21/Sindh Appeal dismissed.