P L D 1988 Karachi 75 (PLP)

AJMAL MIAN, J.‑‑ This petition is directed against the orders dated nil and dated 18‑11‑1987 passed by respondents Nos. 3 and 2 respectively rejecting the petitioner's nomination paper for the Local Council Election District Council No. 13, Dadu on the ground that the petitioner is actively supporting dacoits and his activities is prejudicial to the State and creates lawlessness. The petitioner being aggrieved by the above two orders has filed the present petition.

2. In support of the above petition Mr. Muhammad Ali Shaikh, learned counsel for the petitioner has vehemently urged that there is no basis on which the petitioner was disqualified as he has never been convicted in any case nor there is any case pending against him.

3. On the other hand Mr. Abdul Rahim Kazi, learned Additional Advocate‑General has urged that the scope of clause (g) of section 37 of the Sind Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) is quite wide as to include any prejudicial activities which may be prejudicial to the interest, security, integrity or solidarity of Pakistan.

4. In order to appreciate the above contention, it may be advantageous to reproduce the above clause (g) of section 37 of the Ordinance, which reads as follows:‑‑ "he is opposed to the ideology of Pakistan or is or has been, or is known to be or is a member of a group of persons involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan."

5. A perusal of the above‑quoted clause indicates that a person is disqualified from contesting the election of any office under the Ordinance in case he is opposed to the ideology of Pakistan or is or has been, or is known to be or is a member of a group of persons involved in activities prejudicial to the interest,. security, integrity or solidarity of Pakistan'. It may further be noted that the Explanation provided for the above clause further enlarges the scope of the above clause by providing that the expression "activities prejudicial to the interest, security, integrity or solidarity of Pakistan" shall include instigation to any section of people with a view to creating lawlessness and disorder.

6. Mr. Muhammad Ali Shaikh, learned counsel for the petitioner in furtherance of the above submission has referred to the following cases: (i) Ghulam Nabi v. Khuda Bux P L D 1984 Kar. 245 in which a Division Bench of this Court while construing rules 17 and 19 of the Sind Local Councils (Election) Rules, 1979, inter alia, observed as follows:‑‑ "In our view, the above Supreme Court case arid the Division Bench case are on all tours applicable to the instant case. We may observe that the present case stands on higher pedestal as compared to the above Division Bench case for the reason that rule 18(3)(d)(ii) provides that the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith. This provision is to be viewed with the fact proved that the proposer and the seconder were present alongwith the candidate on the date of filing of the nomination paper before the Returning Officer, we are inclined to take the view that rule 170) is to be read in conjunction with rule 190)(d)(ii). Furthermore, the Courts always lean to placing construction on a section or a rule relating to election which will advance right of franchise and would not defranchise. (ii) Abdul Jabbar Siddiqui v. Government of Sind 1984 C L C 2860). In the above case the above‑quoted clause (g) of section 37 of the Ordinance was subject‑matter of construction and while construing the above clause the following observations were made: "We are inclined to hold that a police officer's report, which was submitted about a year back, of which the petitioner had no notice and on which no action was taken by the authorities concerned at the relevant time cannot constitute a piece of evidence for a Tribunal like respondent No. 2 for declaring a person disqualified under clause (g) of subsection (2) of section 37 of the Ordinance. It may be observed that the right of franchise or the right to contest an election is a valuable right, which a person cannot be deprived of, unless the evidence before authority concerned is of undisputable character, which inspires confidence. The very fact that no action was taken against the petitioner in August 1982 by the authorities concerned adversely reacts on the authenticity of the above report. The report does not contain verbatim versions of the speeches but contains a gist."

7. Whereas, Mr. Abdul Rahim Kazi, learned Additional Advocate‑ General has placed before us the material on the basis of which the B Returning Officer and the appellate authority have rejected the petitioner's nomination form which is a letter dated 13‑11‑1987 of the S.D.M., Mehar addressed to the District Magistrate, Dadu given the list of the persons whose character were verified. Against the name of the petitioner it has been stated that "he has links with dacoits and give shelter to the criminals who visit him." Apart from the above, there is no other material placed before us. It is an admitted position as has been candidly conceded by the learned Additional Advocate‑ General that in no case the petitioner was challaned and there is no criminal case pending against him. In our view, merely the report of the S.D.M., sent a few days before the filing of the nomination paper containing the above remarks is not sufficient material to disentitle a person to contest an election for a Local Council. The ratio decidendi of the above Abdul Jabbar Siddiquits case is very, much applicable to the present case. We may also point out that the above‑reported judgment was delivered when fundamental rights were in abeyance whereas at present fundamental rights are in force, Article 17 of which provides that "every citizen shall have the to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality".

8. We are inclined to hold that after the enforcement of the fundamental rights, the authority empowered under the above‑quoted clause (g) to disqualify a person from contesting an election for al Local Council is expected to be more discreet. It should not deprive a person a valuable right of the one in issue without having credible evidence of unimpeachable character. A S.D.M.'s report written few days before the filing of nomination paper without having the backing of concrete material of which the petitioner had no notice or opportunity to refute cannot be the foundation of the impugned orders.

9. We would, therefore, allow the above, petition and declare the impugned orders as without lawful authority and of no legal effect in The respondent No. 3 is directed to accept the nomination paper of the petitioner and to allocate him symbol for the election. However', there will be no order as to costs. M.B.A./M‑344/K Petition allowed.