1984 PLP 1002 (SCMR)

Record for Respondent No.

1. Date of hearing : 11th April, 1984. ABDUL KADIR SHAIKH, J.‑Dispute in this appeal relates to election to Union Council Khudabadan, District Panjgur, Baluchistan. Appellant Waja Muhammad Hussain and Mir Muhammad Hamza, respon dent No. 1 and certain other persons filed nomination papers which were scrutinised by the Returning Officer Panjgur on 25‑7‑1983 who rejected respondent's nomination paper on the ground that having been convicted by a Summary Military Court to undergo one year's R. I. he was disqualified from contesting the election. Respondent filed an appeal against this order which was heard by the Commissioner, Makran Division as an Appellate Authority. He took the view that as the respondent had been later on ranted pardon, the previous conviction was ‑not attached to him as a stigma Jut, since according to Deputy Commissioner respondent still continues to instigate the students he was disqualified from the membership. The relevant portion of the order passed by the Commissioner reads as under :‑ "I have heard the appellant as well as the Returning Officer who is also the Deputy Commissioner of the area. It is correct that the appellant has been given pardon which' amounts to blotting out his conviction. Yet, the Deputy Commissioner has stated that the ap pellant still continues to instigate students and thus becomes dis qualified under the provisions of section 27 (J) of the Baluchistan Local Government Ordinance, 1980 (II of 1980) read with the Balu chistan Local Government (Amendment) Ordinance, 1983. The report of the Deputy Commissioner is annexed. I have considered the statement of Deputy Commissioner, Panjgur who is the custodian of law and order and responsible for gathering information regarding persons who indulge in subversive or anti‑State activities. In view of the past record of the appellant and the statement of the Deputy Commissioner I hold the appellant disqualified from being a candidate for Local Council Election under the provisions of Ordinance referred to above. The appeal is disposed of accord ingly." In view of the rejection of respondent's nomination paper and withdrawal of the other candidates, appellant was declared unopposed on 4‑9‑1983. Respondent, however, challenged the order of the Commissioner Constitution Petition in Baluchistan High Court which succeeded on the 'tort ground that since respondent was not granted any opportunity to Jute the fresh allegation levelled against him by the Deputy Commissioner for the first time at the appellate stage that he "still continues to instigate lie students", the order passed by the Commissioner offended the principles of natural justice and was thus void in law. Leave to appeal was granted to examine the plea, inter alia, that on the view that prevailed with the High Court, all that could be ordered was direct the lower authority to rehear the case of the respondent after fording him due opportunity to defend himself. We have heard the learned counsel for the parties in ‑ the light of the record before us. It is admitted that the allegation levelled against the respondent that he still continues to instigate the students was made orally by the Deputy Commissioner for the first time against him at the appellate age. It is also clear position on the record that respondent was not granted any opportunity refute that allegation. On these facts, the High Court rightly the order of the Deputy Commissioner on the ground of its being in violation of the principles of natural justice, but ignored that while granting relief by removing respondent's grievance, it ought to have ordered the rehearing of the appeal by the Commissioner with the direction that respondent should be granted an opportunity to refute the allegations levelled against him. We, therefore set aside the order of the High Court and also that of the Commissioner Makran Division and direct that the appeal of the respondent which shall be deemed to be pending shall be heard afresh after granting reasonable opportunity to the respondent to refute the allegations levelled against him. We may clarify that in case the nomination paper of the respondent is found to be valid, the necessary consequence shall be that the election of the appellant as an unopposed candidate shall stand set aside. The appeal is disposed of as above, with no order as to costs. M. Z. M. Order accordingly.