Present
Mr. Justice Mushir Alam.
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 10.12.2009
Date of judgment : 26. 01.2010
Petitioners : Nasir Khan, through
Syed Saeed Hasan Zaidi, Advocate.
Versus
Respondents through Ms. Rubina K. Durrani
& Mr. Ch. Khalid Rahim Arain.
JUDGMENT
Aqeel Ahmed Abbasi, J. Through this Constitutional Petition the petitioner namely Nasir Khan son of Mohabat Khan has impugned the judgment passed by the learned Election Tribunal for Korangi and Malir/IInd Additional Judge, Central Karachi vide combined judgment dated 10.10.2009 whereby Election Petition No.01/2005 filed by the respondent No.1 namely Muhammad Latif Kamboo was allowed and the Election Petition No.01/2006 filed by the petitioner was dismissed.
2. It will be advantageous to reproduce the brief facts as recorded by the learned Election Tribunal while disposing of the Election Petitions filed by the present petitioner i.e. 01/2006 and the other filed by the respondent No.1 i.e. 01/2005 hereunder:-
"That petitioner Muhammad Latif Kamboo, filed his Election Petition No.1 of 2005 against the Returning Officer and others, mentioning therein that the petitioner alongwith Shakoor Khan contested the election for Nazim and Naib Nazim respectively, from the relevant constituency viz UC-1, Bilal Colony, Korangi Town, Karachi (herein after referred as the constituency). The respondents No.7 & 8 also contested election of Nazim and Naib Nazim in the said constituency, who were declared as returned candidates."
At the time of filing of nomination paper, the respondent No.7 submitted copy of his matriculation certificate, with Roll No.37907, Session 1993, issued by Board of Intermediate & Secondary Education Peshawar, N.W.F.P, wherein date of birth of Nasir Khan was not mentioned.
The petitioner himself got verified the matriculation certificate submitted by the respondent No.7 from the concerned Board, who after verification declared it bogus. Then the petitioner filed an application before the Returning Officer and to the Election Commissioner Sindh, praying therein to hold and cancel the result of Respondent No.7 and declare the petitioner as returned candidate but to no avail. Then he filed the election petition with the following prayer:-
a) To declare that the election of returned candidate is void on the ground that the returned candidate was not, on the nomination day qualified for, or was disqualified from being elected as a member.
b) To verify the metric certificate of the respondent No.7 by the Board of Intermediate and Secondary Education, Peshawar and after proper verification of the result of respondent declare void.
c) To declare that the certificate produced by the respondent No.7 is bogus as there is no date and month of birth is mentioned in the alleged certificate produced by the respondent No.7 and there is only mentioned year 1969.
d) To declare the petitioner as a wining candidate as he had obtained highest votes then the respondent No.7 & 8.
e) To restrain the respondents No.7 & 8 from taking oath as a Nazim and Naib Nazim UC-1 Bilal Colony, Korangi Town, Karachi, till disposal of this petition.
f) Any other relief(s) which this Tribunal deems fit and proper in the circumstances of the case be also awarded to the petitioner.
The Respondents No.7 & 8 filed their written statement wherein they denied and controverted the allegations contained in the petition. They contended that at the time of scrutiny of nomination papers of the petitioner and other Respondents objection about bogus matriculation certificate was not raised. The matriculation certificate produced by the Respondent No.7 is genuine having correct date of birth which has been verified by the Court. He prayed for dismissal of the petition.
The brief facts of the Election Petition No.1/2006 are that the petitioner Nasir Khan and Riaz-ul-Hassan contested the election from the constituency, wherefrom the Respondent No.1 Latif Kamboo, also contested election for the seat of Nazim alongwith Respondent No.5 namely Shakoor Khan S/o Sarwar Din, for the seat of Naib Nazim, petitioner produced his matriculation certificate bearing Roll No.37907, of Sessions 1993, Annual Humanities Group issued by Board of Intermediate & Secondary Education, Peshawar. Nomination paper was accepted and on the date of filing objection no one including the Respondent No.1 Muhammad Latif Kamboo raised any objection over it. Poll was held and he was declared as returned candidate and such notification was issued. He took oath and working as Nazim of the constituency.
Then the Respondent No.1 filed Election Petition No.1/2005 alleging therein that his matriculation certificate is bogus, so the election of the petitioner be declared as void. This Court being Tribunal sent the matriculation certificate to the Board of Intermediate & Secondary Education, Peshawar where from, report dated 28.10.2005 was received, whereby the Certificate of the petitioner has been declared as forged, whereas in the Second Report dated 24.11.2005, received from Board of Intermediate & Secondary Education, Peshawar available on record as Ex.P/10, whereby Certificate was found correct, while in third report the same has also been declared a forged. Accordingly, acting upon the report dated 30.11.2005, this tribunal passed the Judgment dated 22.12.2005 and the election of the petitioner has been declared as void on the ground that the petitioner of the returned candidate was not qualified to be elected as Nazim on the day he was declared as returned candidate. In compliance, Respondent No.4 issued notification of the Respondent No.1 and declared him as Nazim who took oath of Nazim before the Respondent No.2.
The Respondent No.1 on the nomination day was not qualified to be elected as Nazim because he submitted his matriculation certificate dated 18.12.2004 issued by Board of Secondary Education Karachi, which contain that the Respondent No.1 appeared in Secondary School Certificate Examination 2002 against Roll No.277181 and 299181 in Science Group with optional subject of Math in the age of 45 years. Any person can not appear in matriculation examination in science group as external candidate as such his certificate is bogus and has been obtained fraudulently.
It will not be out of place to mention here that petitioner of Election Petition No.1/2006 preferred Constitution Petition No.D-1694/2005 before the Hon'ble High Court of Sindh against the Judgment of this tribunal dated 22.12.2005, wherein Hon'ble High Court held that:-
'It was incumbent upon the Tribunal to have recorded the evidence to arrive at the definite conclusion more particularly when the certificates are said to have been issued from another province. The Tribunal further committed illegality by declaring the Respondent No.1 successful, without recording any reasons for arriving at such conclusion. The Tribunal also acted with material irregularity by not passing any order in respect of Respondent No.6, who conjointly contested the election alongwith Respondent No.1 and the Judgment was without any lawful authority and of no legal effect and the Judgment was set aside. The election petition remanded with direction to decide the same in accordance with law after recording evidence and hearing the parties.'
Thereafter, Learned Counsel for the petitioner of Election Petition No.1/06, filed Constitution Petition No.D-2297/2007, wherein Hon'ble High Court of Sindh Karachi ordered for consolidating both the Election Petitions and this Tribunal vide order dated 23.4.2009 consolidated both the petitions and the Election Petition No.1/2005 was ordered to be treated as leading petition being earlier filed in compliance of the direction of the Hon'ble High Court of Sindh."
The learned Election Tribunal after having recorded the relevant facts leading to both the Election Petitions and the chronology of the events including the directions of the Hon'ble High Court in C.P. No.D-1694/2005, remanding the matter to the Election Tribunal for deciding the same in accordance with law after recording evidence and hearing the parties and further direction of the Hon'ble High Court in C.P. No.D-2297/07 wherein the Hon'ble High Court of Sindh ordered for consolidating both the Election Petitions, which accordingly were consolidated by the learned Tribunal vide its order dated 23.04.2009 framing the following issues:-
1) Whether on the nomination day, the petitioner Muhammad Latif Kamboo was qualified to be elected as Nazim, UC-1, Bilal Colony, Korangi Town, Karachi?
2) Whether on the nomination day, the respondent No.7 was qualified to be elected as Nazim, UC-1, Bilal Colony, Korangi Town, Karachi?
3) Whether the matriculation certificate of the petitioner Muhammad Latif Kamboo is genuine?
4) Whether the matriculation certificate of the respondent No.7 is genuine?
5) What should the decree be?
In support of above issues respondent Muhammad Latif Kamboo has been examined as Ex.4, he produced certified copy of his Secondary School Certificate as Ex.P/1, marks sheet as Ex.P/2, certificate in lieu of lost admit card of Class X as Ex.P/3, verification of Secondary School Certificates as Ex.P/4 and P/5, envelope as Ex.P/6, order in Election Petition No.01/2005 regarding verification of SSC; examination as Ex.P/7, verification of matriculation (S.S.C) certificate of Nasir Khan as Ex.P/8, Secondary School Certificate, Board of Intermediate & Secondary Education Peshawar, of Nasir Khan as Ex.P/9, verification of matriculation (S.S.C) Certificate as Ex.P/10, verified SSC Certificate of Nasir Khan as Ex.P/11, envelope as Ex.P/12, reminder for verification of SSC of Nasir Khan to the Secretary Board of Intermediate & Secondary Education Peshawar as Ex.P/13, register of letters dispatched as Ex.P/14, verification report of SSC of Nasir Khan as Ex.P/15, detailed marks certificate of Nasir Khan as Ex.P/16, admission form of Nasir Khan as Ex.P/17, list of candidates as Ex.P/18 and Ex.P/18-A, Election Petition No.01/2005 as Ex.P/19. He was cross-examined by the learned counsel for the respondent Nos.7 & 8. Therefore, learned counsel for the petitioner has closed his side of evidence.
In defence petitioner namely Nasir Khan examined himself asEx.1, who produced his original matriculation certificate as EX.1/A. Respondent No.8 Riaz-ul-Hassan as Ex.2 and Syed Zawar Hussain, Deputy Secretary of Board of Secondary Education as Ex.3, who produced authority, certified copy of particulars of Roll No.2099181 pertaining to Muhammad Latif Kamboo and tabulation register. They were cross examined by the learned counsel for the respondents.
The learned Election Tribunal after having examined the record and witnesses produced by the parties decided the issue Nos.1 to 4 jointly by holding that the matriculation certificate of the respondent namely Muhammad Latif Kamboo is genuine whereas the matriculation certificate of the petitioner Nasir Khan is not genuine. Accordingly in view of the findings on issue Nos.1 to 4 the learned Election Tribunal allowed the Election Petition No.01/2005 declaring the election of return candidate i.e. petitioner namely Nasir Khan son of Mohabat Khan (Nazim) as void on the ground that the return candidate was not qualified on the nomination day to be elected as Nazim. The learned Election Tribunal further declared that the respondent namely Muhammad Latif Kamboo was winning candidate of Union Council No.1, Bilal Colony, Korangi Town, Karachi East, as he has obtained highest votes than the petitioner. The Election Petition No.01/2006 filed by the petitioner was, therefore, dismissed however, while parting with the judgment in the above terms. The learned Election Tribunal also issued directions for registration of FIR under Section 193 PPC against the petitioner namely Nasir Khan for giving false evidence before the Tribunal."
3. Learned counsel for the petitioner has assailed the impugned order mainly on the following amongst the other grounds:-
(i) That no proper issues were framed by the learned Election Tribunal. The same should be framed in view of the pleadings of the parties.
(ii) That the Respondent No.1 did not file his written statement in Election Petition No.01/06, as such the contents of the said Election Petition were not controverted/denied by the Respondent No.1 and had thus been admitted by him.
(iii) That the learned Election Tribunal seriously erred also allowing the Respondent No.1 to produce Exhs.P/4 to Exh.P/19, while in fact such copies were already on record of Election Petition No.01/05
(iv) That the documents which had been produced by P.W.2 Raees Khan, in his evidence, recorded on 18.01.08, in Election Petition No.01/05, were already under dispute and their authenticity had been challenged during the course of his evidence could neither be produced by the Respondent No.1 nor the same could be considered by the learned Election Tribunal, but in the impugned judgment the same had been considered and relied upon.
(v) That the learned Election Tribunal seriously erred in not allowing the Application of the Petitioner dated 05.09.09, for calling the Secretary Board of Secondary Education Karachi, for production of the entire record pertaining to Matriculation Certificate against the Roll No.299181, and for evidence, vide its order dated 17.09.2009.
(vi) That learned Election Tribunal has seriously erred in directing the Registration of F.I.R. against the Petitioner for offense U/S 193 P.P.C. In this respect it is submitted that neither there was an issue framed by the learned Election Tribunal nor such an order could be passed under the law.
4. It was mainly argued by the learned counsel for the petitioner that the documents relied upon by the Tribunal while deciding the Election Petitions were the documents which were filed by an earlier witness whose evidence was discarded, hence the second person/witness could not file and rely on the same documents which were obtained as certified copies from the Court's record. Learned counsel also argued that no attempt was made by the respondent to summon the witness from Peshawar. In this regard he referred to Article 47 of Qanoon-e-Shahadat Ordinance 1984. It was, therefore, argued that the impugned order suffers from material illegalities, hence liable to be set aside.
5. Conversely the learned counsel for the respondent has supported the impugned judgment which according to the learned counsel is based on proper appreciation of facts and correct application of law. It was argued that the reference to Article 47 of the Qanoon-e-Shahadat Ordinance 1984 is misconceived for the reason that several attempts were made to summon the witness from Peshawar Board. Secondly that whatever document/evidence was normally produced by the second person was the official record of the Board and there was no element of gauging the veracity of any oral witness in the instant case. The learned counsel further argued that the petitioner has miserably failed to prove the genuineness of his educational documents particularly matriculation certificate which was found to be forged/bogus whereas all the documents of the respondent are proved to be genuine. Learned counsel for the respondent submitted that the instant petition is misconceived in facts and law hence the same is liable to be dismissed with cost.
6. We have heard both the learned counsel and examined the case record. The precise legal issue revolves around the admissibility and production of the case record relating to educational documents of the petitioner in the instant case. In order to appreciate the legal issues involved in this petition it will be advantageous to reproduce and examine following articles of Qanun-e Shahadat Order 1984:-
Article 47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.
Provided that:
the proceeding was between the same parties or their representatives-in-interest;
the adverse party, in the first proceeding had the right and opportunity to cross-examine;
the question in issue were substantially the same in the first as in the second proceeding.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article.
Article 85 of the Qanun-e Shahadat Order 1984 reads as follows:-
85. Public documents. The following documents are public documents;
(1) documents forming the acts or records of the acts.
(i) of the sovereign authority;
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of Pakistan, or of a foreign country;
(2) public records kept in Pakistan of private documents;
(3) documents forming part of the records of judicial proceedings;
(4) documents required to be maintained by a public servant under any law; and
(5) registered documents the execution whereof is not disputed.
[(6) Certificates deposited in a repository pursuant to the provisions of the Electronic Transactions Ordinance, 2002.]
Article 87 of the Qanun-e-Shahadat Order 1984 reads as follows:-
87. Certified copies of public documents. (1) Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation. Any officer, who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Article.
7. The purpose of reproducing the above Articles of Qanun-e Shahadat Order 1984 is that in the instant case the Matric certificate of the petitioner in Election Petition No.01/2006 and respondent No.1 in Election Petition No.01/2005 were challenged by both the parties to be forged and bogus documents. It appears that in the multiple round of proceeding both the parties filed the original and certified copies of their educational documents including Matriculation certificate. Both the parties examined themselves and filed several exhibits in support of their contentions and were also cross examined during the course of proceedings. However, the respondent No.1 in this petition after having obtained the certified copies of the Matriculation certificate of the petitioner with endorsement from the SSC Peshawar Board at the back of such to the effect that the said Matriculation certificate of petitioner Nasir Khan son of Mohabat Khan is forged one. The Matriculation certificate which was submitted by the petitioner did not bear the date of birth of the petitioner, whereas the certificate issued by the Assistant Secretary (Certificates), who after proper verification endorsed on the back of the copy submitted in the Board Office that in the admission form for Roll No.37907 SSC/A/1993 name of Nasir Khan son of Muhammad Salam, District Peshawar-2 is mentioned, having date of birth i.e. 07.06.1975. In the first round of litigation, Abdul Jaleel Nawaz, Assistant Secretary (Certificates) Board of Intermediate and Secondary Education, Peshawar and Raees Khan, Supttd, Administration, Board of Intermediate and Secondary Education, Peshawar, were examined and deposed that the Matriculation certificate submitted by the petitioner namely Nasir Khan son of Mohabat Khan in Election Petition No.01/2006 is forged one. Both the witnesses were cross examined at length but their evidence remained unshaken and un-rebutted. It is pertinent to mention here that it is not only on account of evidence of Abdul Jaleel Nawaz, the learned Election Tribunal was convinced to hold that the Matriculation certificate of the petitioner namely Nasir Khan son of Mohabat Khan is forged one but it was also on account of evidence of Raees Khan, who is the Supttd, Administration, Board of Intermediate and Secondary Education, who also confirmed the fact of forged Matric Certificate of petitioner namely Nasir Khan. It is also pertinent to mention that learned Election Tribunal has reached to such conclusion not only on the basis of oral evidence of the witnesses but on the basis of availability of public document and their certified copies issued and produced in evidence before the learned Election Tribunal in terms of Article Nos.85 & 87 of Qanun-e Shahadat Order 1984. The Matriculation certificate is a public document in terms of article 85 of the Qanun-e Shahadat Order 1984. Certified copies of the documents issued by the concerned officials and Agencies are to be treated as public document and the production thereof in evidence cannot be objected in terms of articles 87 & 88 of Qanun-e Shahadat Order 1984 and the same is admissible in evidence without proof. Reliance in this regard can be placed on the judgment of Ghulam Muhammad Lali Vs. Imtiaz Ahmed Lali PLD 2006 Lahore 661 and Irshad Ahmed and 06 others Vs. Abdul Hameed and 04 others 1985 CLC 1513. Similarly the certified copy is a proof of public document presumption in general is being attached thereto, attested copy of the public document is admissible in the evidence without any objection in terms of Article 47 and 88 of Qanun-e Shahadat Order 1984.
8. We are fortified in our view by reported judgment of the Hon'ble Supreme Court i.e. (Khan Bahadur and 2 others through his legal heirs Vs. Ahmed Khan and others)1992 SCMR 1362, wherein the Hon'ble Court held as under:-
"Even otherwise, the certified copy of Exh. P.1 had been produced. The gift deed is a public document under section 74(2) of the Evidence Act. According to section 76, certified copies of the public documents shall be given. Certified coy of a public document is a proof of the contents of the public document (section 77). There is a presumption as to the genuineness of certified copy of public document under section 79 of the Evidence Act."
9. On perusal of the above referred Articles (previously of Evidence Act, now) of Qanun-e Shahadat Order 1984 and the case law referred hereinabove it emerges that the learned Election Tribunal has properly entertained the document which being the public document are admissible in evidence. The petitioner could not dislodge the documentary evidence produced against him before the Election Tribunal and merely attempted to dispute its admissibility on technical grounds which otherwise is not available to him in law, whereas the respondent appears to have proved the genuineness of his Matric certificate on the strength of the document itself as well as the evidence of the concerned officer from Board of Secondary Education Karachi, who confirmed the same.
10. In view of hereinabove findings, reference to Article 47 of Qanun-e Shahadat Order 1984 by the counsel for the petitioner appears to be misconceived as the Article 47 relates primarily to the oral evidence, secondly is not attracted on the facts of the instant case which is mainly governed by documentary evidence i.e. public document and their admissibility. Moreover both the cases were consolidated and directed to be proceeded by the orders of High Court. Even otherwise the witness as was duly cross examined by the counsel of the petitioner.
11. It will not be out of place to refer the following judgments wherein under the similar circumstances candidature of the candidate, not having the requisite qualification was declared to be void. In the case of Sher Qayam v. Mir Zaman Khan, Advocate P.L.D 2003 Peshawar 90, a Division Bench of Peshawar High Court has held as under :
"The very nomination of the petitioners was challenged with reference to rule 22 of the Local Government Elections Rules, 2000, on the ground that petitioner No.2 was not, on the nomination day, qualified for Naib-Nazim. The law permits to challenge the nomination of a returned candidate on the ground of lack of educational qualification on the nomination day, whether or not it was taken at the earlier stage of election."
12. In the case of Aslam v. Additional District & Sessions Judge, Okara/Election Tribunal for Tehsil Chunian 2004 Y.L.R 592, a Bench of Lahore High Court has held as under:
"It is proved by evidence on record that the petitioner is not a Matriculate and through fraudulent means he posed himself to be so to contest the election for the office of Nazim for which he was not qualified at all. He lacked requisite educational qualification , therefore, his election is void. The findings of Election Tribunal are based on proper appreciation of evidence and warrant no interference."
13. Similarly, in the case of Raja Binyamin v. District and Sessions Judge, Lahore 2003 Y.L.R 1217, a Bench of Lahore High Court has held as under:
"The learned Election Tribunal had given findings of fact against the petitioner after recording the evidence that the petitioner did not had requisite qualification of Matric."
"It is settled principle of law that Constitutional jurisdiction is discretionary in character, he who seeks equity must come to the Court with clean hands. The petitioner does not approach this Court with clean hands as the petitioner contested the elections on bogus certificate of Matriculation, therefore, I am not inclined to exercise my discretion in favour of the petitioner in view of law laid down by the Honourable Supreme Court in the following judgments."
14. Under the circumstances, we are of the view that the combined order passed by the learned Election Tribunal in Election Petition Nos.01/2005 and 01/2006 declaring the respondent namely Muhammad Latif Kamboo, as successful and petitioner namely Nasir Khan as un-successful candidates, does not suffer from any factual error or legal infirmity, hence does not require any interference by this Court.
15. However, before parting with this judgment, we would like to clarify that the directions for lodging the F.I.R for an offence under Section 193 against the petitioner Nasir Khan shall be subject to strict proof keeping in view the principles attracted in criminal proceeding including mens-rea.
Accordingly, the instant petition is disposed of alongwith listed applications in the above terms.
JUDGE
JUDGE
Nadeem