Rao Mazhar Hayat Versus State

Aalia Neelum, C.J .--- Rao Mazhar Hayat son of Rao Khizar Hayat, Caste Rajput, resident of Mauza Rao Khan Wala, Tehsil and District Kasur, was tried by the learned Sessions Judge, Kasur in a Private Complaint filed under section 78(3)(d) read with sections 82 and 94 of the Representation of People Act, 1976 and sections 199/200/471 P.P.C , P.S. Bdivisionby the Election Commission of Pakistan. The trial court, in terms of the judgment dated 25.04.2013, convicted and sentenced the appellant as under:- i. The appellant was convicted under section 82 of the Representation of People Act, 1976 and sentenced to undergo 06-months imprisonment with the direction to pay Rs.5000/ - as a fine and, in case of default in payment thereof, to further undergo 15-days imprisonment . ii. The appellant was further convicted under section 199 P.P.C and sentenced to undergo 06-months imprisonment with the direction to pay Rs.5000/ - as a fine and, in case of default in payment thereof, to further undergo 15-days imprisonment . iii. The appellant was also convicted under section 200 P.P.C and sentenced to undergo 06-months imprisonment with the direction to pay Rs.5000/- as a fine and, in case of default in payment thereof, to further undergo 15-days imprisonment . iv. The appellant was further convicted under section 471 P.P.C and sentenced to undergo 06-months imprisonment with the direction to pay Rs.5000/ - as a fine and, in case of default in payment thereof, to further undergo 15-days imprisonment.

All the sentences awarded to the appellant would run concurrently. The benefit of section 382-B Cr.P.C. was also extended in favor of the appellant.

2. Feeling aggrieved by the trial court's judgment, Rao Mazhar Hayat, the appellant, has assailed his conviction by filing the instant Criminal Appeal No.581 of 2013.

3. Precisely, the facts as narrated in the complaint (Ex.PA) filed by the Regional Election Commissioner, Lahore against the accuse/appellant under section 78(3)(d) read with sections 82 and 94 of the Representation of the People Act, 1976 and sections 199, 200, 471 P.P.C of the Pakistan Penal Code, 1860, are that the accused/appellant contested election for the seat of National Assembly from constituency No.NA-138 Kasur, held in the year 2008; that the accused/appellant filed his nomination papers before the Returning Officer for the above said seat on 26.11.2017 declaring on oath therein that he possessed Bachelor degree of Science (BSc) from Winona State University, USA and that he was qualified under Article 62 and was not subject to any disqualification provided under Article 63 of the Constitution of Islamic Republic of Pakistan to become a candidate for the seat of National Assembly; that the accused/appellant was required under the law to be a graduate to contest the election of National Assembly; that the Higher Education Commission of Pakistan got scrutinized the BSc degree of the accused/appellant issued by Winona State University and vide letter dated 05.08.2010, same was found fake; that in support, the Higher Education Commission provided a copy of email dated 29.6.2010 of the Registrar of Winona State University, USA stating that he could not find any evidence that the said degree was issued by that University; that through email dated 14.01.2011, the Registrar Winona State University again confirmed that the accused/appellant did not have a degree from that University; that on a reference by the Election Commission of Pakistan, the Registrar Winona State University in his email dated 29.08.2011, again stated that the accused/appellant did not have a degree of any kind from that University; that upon another contact for clarification, the Registrar confirmed through email dated 28.11.2011 that the accused/appellant attended but did not graduate from Winona State University and he was never awarded a degree or issued a diploma from that University; that opportunities were provided to the accused/appellant to defend, but he failed to prove that he possessed a bachelor degree at the time of filing of his nomination papers; that it was crystal clear that the accused/appellant was not possessing any graduation degree or equivalence of any degree at the time of filing nomination papers and made a false declaration in the nomination papers claiming to be holder of a valid graduation degree, as such, prima facie committed an offence of corrupt practice within the meaning of section 78(3)(d), which was punishable under section 82 and was cognizable under section 94 of the Representation of the People Act, 1976 read with sections 199, 200 and 471 of the Pakistan Penal; hence, the Regional Election Commissioner, Lahore was constrained to file the complaint (Ex.PA).

4. Upon receipt of the complaint (Ex.PA), after recording the cursory evidence of the complainant and having perused the record, the accused was found connected with the commission of the offence, so he was summoned to face the charge vide order dated 20.12.2012. After that, the trial court formally charged the appellant on 25.03.2013, to which he pleaded not guilty and claimed trial. The complainant, in support of his version, himself appeared as PW-1 and tendered necessary documents in support of his statement i.e. private complaint (Ex.PA), authority letter (Ex.PA/1), copy of nomination papers submitted the accused/appellant (Ex.PB), copy of degree issued by Winona State University (Ex.PC), E-Mail dated 29.06.2010 sent by HEC to the Registrar, Winona State University (Ex.PD), E-mail sent by the Registrar, Winona State University dated 14.1.2011 (Ex.PE), copy of reference by Election Commission of Pakistan E-Mail dated 29.8.2011 (Ex.PF), another reference contact made by Mr. Muhammad Afzal, the then Joint Secretary Election Commission of Pakistan E-mail dated 28.11.2011 (Ex.PG).

5. The appellant was also examined in terms of Section 342 Cr.P.C., he himself appeared as his own witness in terms of Section 340(2) Cr.P.C. and also produced one Syed Amjad Hussain as DW-1 in his defence. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following deposition: -

I am innocent. My father late Rao Khyzer Hayat, was the first Chairman Zila Council, Kasur, he was elected MNA from the constituency. The present number of which is NA 138. He was elected from the said constituency in 1985, 1988, 1990 and 1993. He died in 1998 thereafter in the General Elections 2002, I contested the Election from the same constituency and as by that time, the condition precedent for contesting election had been inserted in the law that the contestant should be at least graduate. I appended the copy of my degree along with nomination papers thereafter, in the elections 2008, I also participated. Neither in the election held in 2002 nor in the election held in 2008 anybody including the returning officer raised objection regarding validity of my degree. I obtained the degree from said university in 1987 and for the first time after the lapse of 23 years, the Election Commission of Pakistan issued notice to me leveling invalid allegation. I submitted a written reply in response to that notice which is present on the file as Exh.D.Z along with the documents I also mentioned the name of the professor who used to teach me during the period of my study and I requested to the Election Commission that the above said professor including the president of the university namely Thomas.F.Stark may be consulted regarding my genuine study but the Election Commission did not bother about it thereafter, I again submitted another reply which is present on the file as Exh.D.B. I also attached documents which have been exhibited before this court in order to prove that I genuinely studied BSC (Business Administration) at Winona State University Minnesota USA from 1983 to 1987 and successfully completed the course at the university and degree Exh.P.C was conferred upon me during the ceremony of 127th commencement of the University held at Memorial Hall, McCown Gymnasium, on Saturday, May 23, 1987. I sat in the allocated Row No. 6R and was photographed by the University photographer while receiving congratulations from the President of the University Dr. Thomas F.Stark. My name was published in the Winona Daily News of May 24th, 1987 at page 5 and also at page 6 of the University Commencement Brochure of May 23rd, 1987 in the list of Successful Graduates. This conferment was followed by dispatch of the Degree Certificate/Diploma in original through mail at my address in USA. I reiterate that the degree was conferred on me was genuine and the copies I have produced thereafter, before the various forum including before this court I have reasonable grounds for believing and did believe that the degree and other documents including my statement before the Returning Officer was true. After the lapse of 23 years, I was informed by the Election Commission that the said university has denied the issuance of the degree. Therefore, I was constrained to deliver E-mail to the Registrar Winona State University which I have produced Exh.D.D and requested that I may kindly be informed regarding my credits and grade point average earned throughout my graduation period. On my request, the university mailed me through original envelop Exh.D.D a letter, the attested copy is Exh.D.E informing me on 21.4.2011 that Mazhar Hayat earned 161 quarter credits at Winona State University. His cumulative grade point average was 2.68 on a 4.00 scale. Thus the degree requirement was clearly met according to the latest Winona State University under graduate catalog 2010 to 2012 available at the university web site whereby 120-128 Credits and Cumulative grade points average GPA of 2.00 on a 4.00 scale is required which my GPA is 2.68 thus, I was eligible for the degree which was bestowed upon me on the said ceremony.

6. The trial court, after recording evidence and evaluating the evidence available on record in the light of the arguments advanced from both sides, found the prosecution's version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the aforestated terms.

7. We have heard the arguments advanced by the learned counsel for the parties and the learned law officer and have minutely perused the record available on the file.

8. The record reveals that the Regional Election Commissioner, Lahore, filed a private complaint (Ex.PA) before the Sessions Judge, Kasur. In Para No. 1 of the private complaint (Ex.PA), the complainant (Regional Election Commissioner) mentioned that he was duly authorized by the Election Commission of Pakistan to lodge the complaint. Admittedly, the Regional Election Commissioner, Lahore, has not appeared as a witness to prove the contents of the complaint and the other documents. Upon reviewing the private complaint (Ex.PA), it is mentioned in Para No. 1 that the complainant is the Regional Election Commissioner, Lahore, who has been duly authorized by the Election Commission of Pakistan to lodge the complaint. At the bottom of the private complaint (Ex.PA), the details of the documents attached and relied upon are provided; the authority letter authorizing the filing of the private complaint is not relied upon nor attached to the complaint. Khaliq-ur-Rehman (PW-1) was authorized through an authorization letter dated 26-11-2012 (Ex.PA/1) only to pursue the complaint. Khaliq-ur-Rehman (PW-1) deposed during cross-examination that:-

We have not annexed with the complaint letter issued by Election Commission of Pakistan to file this private complaint.

The authorization letter dated 26-11-2012 (Ex.PA/1) is a certificate authorizing Khaliq-ur-Rehman (PW-1) to appear before the Sessions Court, Kasur, and to pursue the Complaint against Mr. Mazhar Hayat, MNA. The burden has shifted upon Khaliq-ur-Rehman (PW-1) to prove that the Election Commission of Pakistan authorized him not only to pursue the private complaint before the Court, but also to appear before the Court, and to depose as witness on behalf of the Election Commission of Pakistan. There is no valid authorization letter on record authorizing Khaliqur-Rehman (PW-1) to give evidence. Everything cannot run by presumption. It cannot be presumed here that whoever appeared in the name of the complainant was really the complainant/Election Commission of Pakistan. In this regard, the evidence of Khaliq-ur-Rehman (PW-1) cannot be considered the evidence of a legally authorized person of the complainant. We are of the view that the complainant, the Regional Election Commissioner, Lahore, should have himself appeared in court to prove the facts. Admittedly, the complainant/Regional Election Commissioner, Lahore, has not appeared in the witness box and has not proved the allegations levelled in the complaint (Ex.PA). On the other hand, Khaliq-ur-Rehman (PW-1), Director Establishment Office of Provincial Election Commissioner, Punjab, deposed that after the retirement of Mr. Ishtiaq Ahmad, Regional Election Commissioner, Lahore, he (PW-1) was authorized by the Election Commission of Pakistan vide authority letter dated 23.12.2012, which he submitted as Ex.PA/1 issued in his favour by the Election Commission of Pakistan. On perusal of Ex.PA/1, it reveals that the same is dated 26.11.2012 instead of 23.12.2012, and no authority letter dated 23.12.2012 is available on the record, nor exhibited by Khaliq-ur-Rehman (PW-1). Khaliq-ur-Rehman (PW-1) deposed during his examination-in-chief that:-

On his retirement I was authorized by Election Commission of Pakistan vide authority letter dated 23.12.2012. I submit the authority letter Exh P.A/1 issued to me by Election Commission of Pakistan as I am posted as Director Establishment in the Office of Provincial Election Commissioner, Punjab. On 3.12.2012, I appeared in this court and recorded my cursory statement.

This fact has not been denied by the learned law officer appearing on behalf of the Election Commission of Pakistan, who stated that the cursory statement was also not recorded by Mr. Ishtiaq Ahmad (since retired), who was authorized by the Election Commission of Pakistan to file the private complaint (Ex.PA). Admittedly, the summoning of the accused in the private complaint was based on a statement that was not recorded by a person authorized by the Election Commission of Pakistan. During cross-examination, Khaliq-ur-Rehman (PW-1) demonstrated ignorance of material facts and of the documents relating to the filing of nomination papers for the seat in the National Assembly for constituency No. NA-138, Kasur, before the Returning Officer on 26.11.2007. During that proceeding, the accused/appellant placed on the record his Bachelor of Science (BSc) degree from Winona State University, USA, and stated that he was a graduate, thereby qualifying for the election as required. During examination-in-chief, Khaliq-ur-Rehman (PW-1) deposed that:

Many opportunities were granted to respondent accused to defend but he failed to prove that he possessed a genuine degree and present the same at the time of filing of nomination paper thus it was clear that he committed offence under the relevant provisions of law that is corrupt practice.

Contrary to the above, Khaliq-ur-Rehman (PW-1) deposed during cross-examination that:-

I cannot deny that I deposed incorrectly that accused was given opportunities by the Election Commission of Pakistan to defend him as these proceedings are lying with Election Commission of Pakistan.

During cross-examination, Khaliq-ur-Rehman (PW-1) also admitted that the accused/appellant submitted a reply to the allegations set out in the complaint (Ex.PA) to the Election Commission of Pakistan, and attested copies of the reply are on record as Ex. DB (1 to 8). In this regard, he (PW-1) deposed as under:-

It is correct that the reply submitted by the accused against these allegations to Election Commission of Pakistan and its attested copies are Exh. D B (1 to 8), E-mail from Mr. Mazhar Hayat to the Registrar Winona State of University USA Exh. D.C original mail envelope of the letter received from Winona University Exh. D.D, letter of registrar Winona University dated 21.4.2011 Exh. D.E, attested copy of the affidavit policy and university requirement for total credit points Exh. D.F, attested copy of the affidavit of Syed Amjad Hussain Exh. D.G, attested copy of the affidavit of Mr. Muhammad Daud Khan Exh. D.H., attested copy of form 1-20 Exh. D.J., attested copy of the passport of Mr. Mazhar Hayat Exh. DK(1 to 4), attested copy of original I.D Card of Mr. Mazhar Hayat from Winona State University Exh. D.L, attested copy of Grade report Exh. D.M, attested copy of the mail envelope of Winona University Exh. D.N, attested copy of report of Grade Exh. D.O, attested copy of the envelop Exh. D.P, attested copy of form 1-20 of Winona University Exh. DQ., attested copy of convocation/ commencement held on 23.5.1987 Exh. D.R (1 to 7) along with lists of candidate who are being degree, attested copy of Winona Daily News 24th May 1987, Exh. D.S, attested copy of the photograph along with President of Winona University at the convocation Exh.DT, attested copy of another photograph inside the Commencement Hall, Exh. DU, attested copy of the photograph along with Professor and his wife who was also the fellow student Exh. D.V attested copy of photograph of Mazhar Hayat along with doctor Hunter Professor of Economics Exh. D.W, attested copy of Photograph along with Mr. Dean Macmillan Exh. D.X, attested copy of the respondent along with his late father taken at the eve after convocation Exh. D.Y, attested copy of reply committed by Mazhar Hayat along with list of documents and mentioning the name of eight professors including the President for verification of his degree submitted before the Election Commission Exh. D.Z (1 to 3).

I cannot make a statement that as to whether all above submitted documents adduced by the accused were verified by the Election Commission and were sent to the concerned university at USA. I cannot make any statement as to whether Election Commission taken into consideration that in the earlier E-mails Winona University admitted the accused was student in the university date of admission, that accused was regular student and confirmation of degree and reply was vague however Election Commission of Pakistan did not verify it in a legal and befitting matter. I also cannot state that in the next E-mail received the University admitted the newspaper items and that the accused was figured in the list of provisional list. I cannot comments that emails sent from university were containing self contradictory rendered to Election Commission of Pakistan. I cannot say anything that as to whether Election Commission of Pakistan get these documents from University through Embassy or sent there its member. 1 also cannot state that the equal department as to higher Education of Pakistan in America was State University Board. I also cannot state that as to whether Education Commission and Election Commission of Pakistan not tried to verify documents adduced by the accused State University Board. I also cannot state as to whether the degree produced and attached with the nomination papers was verified regarding its genuineness from Forensic Science.

From the above deposition of Khaliq-ur-Rehman (PW-1), it reveals that the questions put by the defence, he gave answers by stating, I cannot make a statement , I also cannot state , or I could not state and it goes without saying that such vague type of answers are contrary to the trite law that for reliance, evidence should be crystal clear to establish charge against accused beyond shadow of doubt. Even otherwise, evidence of Khaliq-ur-Rehman (PW-1) cannot be taken into consideration, as he was not an authorized complainant to make a statement before the Court nor authorized to appear as a witness in the case. Khaliq-ur-Rehman (PW-1) exhibited copies of the e-mail dated 29.06.2010, (Exh.PD), e-mail dated 14.01.2011 (Exh.PE), e-mail dated 29.08.2011 (Exh.PF) and e-mail dated 28.11.2011 (Exh.PG), given by the Higher Education Commission and Muhammad Afzal Khan, Joint Secretary/nominated officer of the Election Commission of Pakistan, which were not electronically signed, were sent to and received by Mr. Syed Asim Hussain Shah and Muhammad Afzal Khan. Mr. Syed Asim Hussain Shah and Muhammad Afzal Khan have not appeared as witnesses to prove that they sent emails to the Registrar of Winona State University to verify the degree of Mazhar Hayat, MNA, and received the emails. A question also arises as to who took a printout of the emails exhibited. Khaliq-ur-Rehman (PW-1) had also not exhibited a certificate under Article 78-A of the Qanun-e-Shahadat Order, 1984. Moreover, Khaliq-ur-Rehman (PW-1) had not exhibited any certificate as required under Article 78-A of the Qanun-e-Shahadat Order, 1984 to alter the status of a "deemed document" to that of an "electronic document." It is also noted that the prosecution has not specifically proved that the e-mails establish the accused's involvement in any offence. It is also noted that electronic evidence has not been duly proved in accordance with the law. Upon perusal, it is seen that the email (Exh. PE) exhibited by PW-1 is typed on a computer but is not in the format used to view and download emails from "Yahoo Mail". Thus, in the considered opinion of the Court, none of the e-mails referred to herein (Exh.PD to Exh.PG) qualifies as admissible electronic evidence under Article 78-A of the Qanun-e-Shahadat Order, 1984 and Sections 16 and 17 of the Electronic Transactions Ordinance, 2002, in the absence of any certificate under Article 78-A of the Qanun-e-Shahadat Order, 1984 and Sections 16 and 17 of the Electronic Transactions Ordinance, 2002. As stated hereinbefore, the contents of the said e-mails (Exh.PD to Exh.PG) were not duly proved by PW-1. Thus, in our considered opinion, the hereinbefore referred e-mails (Exh.PD to Exh.PG) are inadmissible as electronic evidence because they are not the original e-mails and, moreover, are not supported by a certificate as required under Article 78-A of the Qanun-e-Shahadat Order, 1984 and Sections 16 and 17 of the Electronic Transactions Ordinance, 2002.

10. Even the emails and other documents placed on the record under objections were submitted in violation of Sections 16 and 17 of the Electronic Transactions Ordinance, 2002. Even under Article 78(A) of the Qanoon-e-Shahadat Order, 1984, the prosecution needed to place in evidence proof of an electronic signature in electronic documents, which has not been fulfilled, nor have certified copies of these documents been filed. Instead, the documents filed are copies of attested documents. In the absence of original documents, it was the duty of the prosecution to produce secondary evidence after getting permission from the Court and fulfilling requirements for producing secondary evidence. Thus, the charge framed against the accused/appellant under section 82 of the Representation of the People Act, 1976, read with sections 199, 200, and 471 P.P.C does not stand proved.

11. In view of the above circumstances, we concluded that the prosecution failed to lead incriminating, corroborative/independent evidence to establish the guilt of the accused-appellant. In this background, the benefit of doubt is to be extended in favour of the accused-appellant. In the case of Muhammad Akram v. The State (2009 SCMR 230), it has been held as under:-

The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.

12. The upshot of the above discussion is that the prosecution has failed to bring home a charge against the appellant beyond any reasonable doubt; therefore, in the interest of the safe administration of Criminal Justice, Criminal Appeal No.581 of 2013 filed by the appellant, Rao Mazhar Hayat, is accepted, resultantly the conviction recorded against and sentence awarded to the appellant by the learned Sessions Judge, Kasur, vide judgment dated 25.04.2013 is set aside and the appellant, Rao Mazhar Hayat son of Rao Khizar Hayat is acquitted of the charge in the subject case. He (the appellant) is on bail, so his sureties are discharged.

MH/M-81/L Appeal allowed.