P L D 2006 Lahore 155 (PLP)

UMAR ATA BANDIAL, J.

From his record the officer of the Home Department stated that the name of the petitioner does not appear in the 4th Schedule of the A.T.A., 1997 nor is any police case registered against the petitioner. However, he informs that the local police has included the petitioner's name in its list of disapproved candidates and the Intelligence Bureau, Government of Pakistan has also reported against him. Both information do not contain any factual material involving or connecting the petitioner with any activity or incident or a role in either.

2. In view of the above said bare allegation against the petitioner, this Court vide order dated 10-8-2005 directed the learned Standing Counsel to obtain the adverse information about the petitioner on the basis of which the Intelligence Bureau, Government of Pakistan sought his exclusion from contest in the current Local Government Elections.

3. On instructions of the Intelligence Bureau learned Standing Counsel has stated that the material on the basis of which the petitioner is sought to be excluded from the electoral race has already been forwarded to the Home Department. He also alleges that the petitioner is an ex-member of the Majlis Shura of the Sipah Sihaba and is now an active member of the M.I.P. He has referred to a letter by the Election Commission of Pakistan dated 18-7-2005 issued evidently in exercise of power conferred by section 150 of the Punjab Local Government Ordinance, 2001 wherein all Returning Officers have been directed to reject the nomination papers of persons who are or were members of any banned organization. The list of banned organizations attached thereto includes the Sipah Sihaba and Millat Islamia of Pakistan (MIP). Learned Standing Counsel candidly accepts that presently there is no material available with him that can even suggest the truth of the allegation made. Learned Addl. A.-G. who is accompanied by an officer of the Home Department is also not in a position presently to refer any material indicating to the slightest degree an involvement of the petitioner in any activity of intolerance, violence or participation in any capacity in the affairs of the banned organization.

4. On the other hand, learned counsel states that the petitioner has served as Naib Zila Nazim, Jhang for nearly 2 years until May, 2004. He is President of the District Tax Bar Association and also a member of the District Bar. A commendation certificate from Mr. Sultan Hameed the former Zila Nazim of District Jhang dated 20-6-2005 recounts the petitioner's profile in public life and his services to peace in the district. Admittedly the petitioner is prominent in public life yet there is no complaint, report or allegation of intolerance, violence or extremism against him.

5. With reference to reliance upon source information or intelligence material, learned counsel has drawn attention to the strict standard laid down by the Hon'ble Supreme Court in the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC

57. The evidentiary test/standard laid down in the precedent case need not be passed in the summary proceedings from which the present petition emanates. However, two things are clear. Firstly, that the quality of intelligence information sufficient for initiating executive action cannot summarily be presumed to meet the requirements of judicial standard of scrutiny. Secondly, the proceedings of scrutiny before the learned statutory fora below are to be conducted in accordance with judicial norms and the criteria of the applicable law. On that touchstone, to condemn a person out of the electoral race and thereby to deprive him of a valuable right available under law, requires some material that links, indicates or suggests a connection between the petitioner and a banned organization or its activities. At the present moment there is no such material available on record. Not even an F.I.R. filed against the petitioner alleging mischief by him in a political incident or rally. Conversely, there is material showing public service and responsible conduct by the petitioner. In the light of the foregoing state of the record and the standards of its judicial norms, this Court is of the opinion that the petitioner should not be condemned from the electoral contest in the Local Government Election.

6. It goes without saying that for a participant in the democratic process there is a positive duty cast to act in accordance with the norms of democratic behaviour. The petitioner is, therefore, allowed to participate in the election process subject to the following conditions. Firstly, that the petitioner shall file his affidavit and his undertaking that deny his involvement in and disavows: violence of any form for political, social, religious or other purposes; hatred against persons on religious, social or political grounds; membership, sympathy and support to any banned organization and most importantly pledges his subscription and belief in democratic norms of behaviour including respect for consensus, tolerance and the use of lawful and rational means alone for expression of dissent.

7. Learned Standing Counsel has indicated that paucity of time allowed is a reason for his inability to bring material before this Court. Accordingly, further opportunity is granted to him to bring any material showing the involvement of the petitioner in activities or affairs of any banned organization, be it direct or indirect. Upon the perusal of such material, be it of indicative value only the present order allowing the petitioner to participate in the election may be reviewed.

8. Learned counsel for the petitioner submits that he has raised a dispute to the vires of the aforesaid letter issued by the Election Commission of Pakistan, in particular whether it operates retrospectively to a date prior to the ban on extremist organizations in early 2002. That there are also other legal challenges that deserve the consideration of this Court. This may be done after receiving the comments from the respondents in this petition which shall be filed within three weeks.

9. Notice be also issued to the learned Deputy Attorney General to assist this Court on the legal questions arising in the petition and otherwise posed by this order.

10. Stay application to come up on 19-8-2005. M.B.A./M-6/L Order accordingly.