1988 MLD 912 (PLP)

NASIR ASLAM ZAHID, J.‑‑This petition has been filed by the petitioner, Wali Muhammad s/o Moosa, who had filed his nomination papers for contesting the Local Bodies Elections for Constituency No. 192 in Union Council No.2, K.M.C. Council, District West Karachi. After scrutiny, nomination papers of the petitioner were found to be in order by the Returning Officer and he was allowed to contest the election scheduled to be held in September, 1983. Respondent No. 1 is Deputy Commissioner, Karachi West, and being the appellate authority, he issued a show‑cause notice dated 29‑8‑1983 to the petitioner, which reads as follows:‑ "Sub: DISQUALIFICATION FROM CONTESTING COUNCILLORS ELECTIONS. Whereas it has been reported to me that you were an office‑Barer of a political party and are, therefore, hit by provisions of section 37 (3) of Sind Local Government (2nd Amendment) Ordinance, 1983. You arc hereby required to show cause as to why you should‑not be disqualified from contesting elections as a councillor to K.M.C.

192. You may appear before me on 31‑8‑1983 at 12 noon alongwith your relevant documents/evidence, etc. in person. In case of your absence, the matter shall be decided on merits." According to the petitioner, he received this show‑cause notice on 30‑8 1983. He appeared before the Deputy Commissioner/Appellate Authority on 31 8‑1983, on which date the Appellate Authority passed the following order disqualifying the petitioner from contesting the election:‑ "On the basis of reports received from the local police, a show‑cause notice was issued suo motu to show cause as to why he should not be disqualified from contesting elections as he was hit by provisions of section 37 (3) of Sind Local Government (2nd Amendment) Ordinance, 1983 and that he should appear before the Appellate Authority on 31‑8 1983 at 12 noon alongwith documents/evidence in his defence. He appeared today in person and was heard. The candidate contended that he is not in association with defunct‑PPP, The report of Superintendent of Police, Nazimabad Division indicate:, that the candidate was chairman of defunct‑PPP, Morio village Shershah. The candi0ate has failed to produce any defence. On the basis of report of Superintendent of Police Nazimabad Division, he is hit by provisions of section 37 (3) of Sind Local Government (2nd Amendment) Ordinance, 1983. 1, therefore, disqualify him from contesting the elections on the basis of powers vested in me under sub‑rules (s) and (6) of Rule 19 of Sind Local Councils (Elections) Rules, 1109 The original papers may be returned to the Returning Officer." The petitioner filed the present Constitutional Petition on 15‑9‑1983 impugning the order dated 35‑8‑1983 of the Appellate Authority disqualifying him from contesting the election. The election petition was admitted to regular hearing by this Court by order dated 27‑9‑1983. On 3‑10‑1983, when this petition was fixed for hearing of applications, the learned Advocate‑General pointed out that in other similar petitions order had beer. passed by this Court That the contesting candidates for the Union Council in question should be impleaded as parties to the petition. An order was passed accordingly and the amended petition was thereafter filed impleading all the candidates, who had taken hart in the elections including the candidate who had been returned elected from the constituency in question, namely, respondent No.

10. According to the learned council, the elections had been held on 29-9-1983 and as the petitioner had been disqualified from taking part in the elections by order dated 31‑8‑1983 of the Appellate Authority, he could not take part in the elections. Three prayers have been made in the present Constitutional petition and the same are contained in the prayer clause which reads as follows: "It is therefore most respectfully prayed that this Honourable Court be pleased to set aside the impugned order dated 31‑8‑1983, passed by the respondents and then maintain the order of the Returning Officer/Civil Judge, Karachi, and allow the petitioner to contest elections." We have heard Mr.Munawar Malik, learned counsel for the petitioner, Mr. M.I. Memon, learned Addl. Advocate‑General for the official respondents, Mr. M.L. Shahani, learned counsel for respondent No.10, the elected candidate, and Mr. Ataullah Khan, learned counsel for respondent No.11, a candidate who had taken part in the elections but had lost. No one has appeared on behalf of other private respondents.

2. It is apparent from the impugned order dated 31‑8‑1983 that the appellate authority had disqualified the petitioner under section 37 (3) of the Sind Local Government Ordinance, 1979, which subsection was added by the Sind Local Government (2nd Amendment) Ordinance IX of 1988. This provision reads as follows:‑ "No person shall be eligible to be elected as, and to be a member if he has at any time on or after the 20th December, 1971, been a member of an Executive Committee, by whatever name called, or an office‑bearer of a political party at local, district, provincial or national level, provided that nothing herein contrained shall apply to a person who is a member of the Federal or Provincial Cabinet or of Federal or Provincial Council or of any council, immediately before the coming into force of the Sind Local Government (Second Amendment) Ordinance, 1983." It is apparent from a perusal of the impugned order dated 31‑8‑1983 that the entire basis of the order was some report of the Superintendent of Police, Nazimabad Division, which, according to the impugned order, indicated that the candidate was Chairman of defunct‑PPP, Morio village Shershah. It is apparent that neither a copy of the report was shown to the petitioner nor the Superintendent of Police, who is alleged to have given the report, was examined nor the petitioner was given an opportunity to cross‑examine the Superintendent of Police. On the Contrary, the impugned order states that the petitioner had failed to produce any defence. In our view, on an undisclosed report of the S.P., an order disqualifying the petitioner could not have been passed by the appellate authority. The material on the basis of which the allegation had been made that the petitioner was the chairman of a political party, should have been disclosed to the petitioner and then he should have been given an adequate opportunity to meet the factual allegations against the petitioner in such material. It has further been noted that even the impugned order does not say that petitioner was the chairman of a political party after 20‑12‑1971 as provided by section 37 (3). We are accordingly of the view that the order dated 31‑8‑1983 cannot be sustained. It may be observed here that neither the Addl. Advocate‑General nor the two other learned counsel argued in favour of the impugned order.

3. As observed earlier, there are three prayers made in the present Constitutional petition. One prayer refers to setting aside the impugned order dated 31‑8‑1983 of the appellate authority which we are granting by this judgment. As a necessary consequence, the order of the Returning Officer finding the nomination papers of the petitioner to be valid and proper stands revived. The difficulty is about the grant of the third prayer that tile petitioner be allowed to contest the election. As observed earlier, the elections have already been held on 29‑9‑1983. In fact respondent No. 10 has been returned elected in the election. Further, we find that no prayer has been made in the present petition for setting aside the elections held for the constituency in question. Then our attention was drawn by Mr. M.L. Shahani, learned counsel for respondent No.10, that after the elections had been held, an election petition could have ‑been filed by the petitioner under Rule 65 of the Sind Local Councils (Elections) Rules, 1979. An election petition can be filed by a candidate for the elections in question and the terms "candidate" and "contesting candidate" have been defined in sub‑rules (1) and (2) of Rule 2 of the Sind Local Government (Elections) Rules, 1979. Obviously the petitioner does not fall within the definition of "contesting candidate" but in our view it has been rightly contended by Mr. M.L. Shahani that he falls within the definition of "candidate" contained in sub‑rule (1) of Rule

2. This sub‑rule defines "candidate" as meaning a person proposed as a candidate for or seeking election as a member. The petitioner had been proposed as a candidate and in any case he was seeking election as a member and as such being a "candidate" within the meaning of the term given in Rule 2 (1) he was competent to file the election petition after the election and under Rule 67 he could have claimed the relief that the election as a whole be declared. as void. According to the learned counsel for the respondent No. 10, the petitioner should have filed an election petition after elections had taken place. The contention, raised by learned counsel for respondent No. 10, is correct that an election petition could have been filed by the petitioner after the elections, had taken' place, although he was not a contesting candidate the election petition being maintainable by a "candidate". In the circumstances, oral prayer made for declaring the elections to be void so that the petitioner may have the opportunity to take part in the election for the constituency in question cannot be allowed in this petition. The petitioner is however, free to take such other legal proceedings; as may be permissible under the low.

4. C.P., D‑705 of 1983 is allowed to the extent that the impugned order dated 31‑8‑1983 passed by the Deputy Commissioner, Karachi West/Appellate Authority is declared to have been passed without lawful authority and to be of no legal effect. There will be no order as to costs. M.Y.H./2522/L Petition accepted.