1984 PLP 2860 (CLC)

(a) Sind Local Government Ordinance (XII of 1979)‑‑ ‑‑‑S.37(2) cl. (g)‑‑Sind Local Councils (Election) Rules, 1979, r.19(6)‑ Notification No.OSD/Elect/LG/106/83, dated 15th August, 1983‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑Election‑‑Disqualification‑‑Reason able interpretation of cl. (g) of subsection (2) section 37 of Sind Local Government Ordinance, 1979, held, would be to read words "is or has been or is known to be" in conjunction with words "involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan" by omitting words "or is a member of group of persons"‑‑No plausible reason, held further, exists to leave out a person from scope of clause if he is involved in activities specified in said clause. (b) Sind Local Government Ordinance (XII of 1979)‑‑ ‑‑‑S.37(2)(g)‑‑Sind Local Council (Election) Rules 1979, r.19‑‑Notification No.OSD/Elect/LG/106/83, dated 15th August,1983 and Provisional Constitution Order (1 of 1981), Art.9‑‑Election‑‑Disqulification‑‑Report against petitioner under clause (g) of subsection (2) of section 37 of Sind Local Government Ordinance, 1979, submitted by Police Officer a year back of which petitioner had no notice and on which no action taken by authority concerned at relevant time‑‑Report, held, lost its authenticity and could not constitute a piece of evidence against petitioner for declaring him disqualified‑‑Order declaring him disqualified for election on such ground, held, without lawful authority. (c) Sind Local Government Ordinance (XII of 1979)‑‑ ‑‑‑S.37(2)(g)‑‑Sind Local Council (Election) Rules, 1979, r.19‑‑Notifica tion N0.0SD/Elect/LG/106/83, dated 16th August, 1983‑‑Provisional Consti tution Order (1 of 1981), Art.9‑‑‑Election‑‑Disqualification‑‑Right of franchise or right to contest election, held, a valuable right which a person could not be deprived of unless evidence before authority concerned was of undisputed character and inspiring confidence‑‑Report against petitioner not containing verbatim version of speeches but contained a gist which was submitted a year back‑‑Fact that no action taken by authority adversely reacted on authenticity of report. AJMAL MIAN, J.‑‑This petition is directed against the order dated 5th September,1983 passed by respondent No.2 in purported exercise of power under sub‑rule (6) of rule 19 of the Sind Local Council (Election) Rules, 1979 read with Notification No.OSD/Elect/LG/106/83, dated 15th August, 1983 declaring the petitioner as disqualified under clause (g) of subsection (2) of section 37 of the Sind Local Government (Second Amendment) Ordinance, 1983 (hereinafter referred to as the Ordinance). The relevant facts leading to the filing of the above petition are that the petitioner filed nomination paper for Local Council Election of Unit No.14, Hyderabad Municipal Corporation, which was accepted by the Returning Officer. The petitioner was served with a notice dated 31st August 1983 by respondent No.2 calling upon him to show cause on 3rd September,1983 as to why he should not be disqualified. It may be advan tageous to reproduce hereinbelow the above notice, which reads as follows: No.183‑LBE/83. Office of the Commissioner Hyderabad Divn. Hyderabad, dated the 31st August. To, Mr. Abdul Jabbar Siddiqui s/o Aligohar Siddiqui, r/o E‑2066 Ganjbux‑ka‑Pir, Idara Almustafa, H.M.C‑

14. It has been brought to my notice that you have been involved in activities prejudicial to the interest security, integrity or solidarity of Pakistan and therefore, you are disqualified being a candidate for Local Council election under clause (g) of subsection (2) of section 37 of the Sind Local Government (second Amendment) Ordinance, 1983. You are hereby called upon to appear before me in my office at Shahbaz Building, Block 'A' Thandi Sarak, Hyderabad on 3rd September,1983 at 9‑00 a.m. failing which proceedings against you will proceed ex parte. Sd/. Abdullah J. Memon, Commissioner Hyderabad Divn. In response to the above show‑cause notice the petitioner filed a reply and appeared before respondent No.2. However, respondent No. 2 by his impugned order, dated 5th September,1983 declared the petitioner as disqualified. The petitioner being aggrieved by the above order has filed the present petition.

2. In support of the above petition Mr. Muhammad Ali Shaikh learned counsel for the petitioner has urged as follows:‑ (i)That in order to attract clause (g) of subsection (2) of 'section 37 of the Ordinance, it is necessary that a person should be a member of a group of persons involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan and this clause cannot be pressed into service if a person does not belong to a group. (ii) That even otherwise respondent No.2 was not justified to declare the petitioner disqualified on the basis of police report dated 14th August,1982, of which the petitioner had no notice prior to the hearing of the case by respondent No.3 on 5th September,1983. On the other hand Mr.Sayeed A.Shaikh learned Advocate‑General, Sind, has contended as follows:‑ (i) That the reasonable interpretation of clause (g) would be that even a person who is involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan will be covered by clause (g) of subsection (2) of section 37 of the Ordinance. (ii) That this Court in exercise of writ jurisdiction cannot go into the question, whether the material before respondent No.2 was sufficient to declare the petitioner as disqualified under the above clause (g) of subsection (2) of section 37 of the Ordinance.

3. As regards the first contention, it may be advantageous to reproduce hereinbelow clause (g), which reads as follows:‑ "(g) 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." "Explanation:‑ For the purpose of this clause, 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." It may be observed that the above clause provides the grounds in which a person can be disqualified from contesting a local council etc. namely if he is opposed to the ideology of Pakistan or is or has been or is known to be or is a member of group of persons involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan. The explanation further extends 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. The question which is in issue, is whether the words "is or has been or is known to be .. " can be read in conjunction with the words "involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan" without reference to the words appearing in between, namely, "or is a member of a group of persons." We are inclined to hold that the reasonable interpretation of the above clause would be to read the above words "is or has been or Is known to be" in conjunction with the words "involved in‑activities prejudicial to the interest, security, integrity or solidarity of Pakistan" by omitting the words "or is a member of group of persons." There cannot be any plausible reason to leave out a person from the scope of the above clause if he is involved in the activities specified in the above clause. The contention of Mr. Muhammad Ali Shaikh, therefore, in our view is devoid of a force. Reverting to the second contention, it may be observed that it is an admitted position that ASI submitted a report on 14th August, 1982 to the SHO of the police station concerned containing the alleged gist of the Petitioner's speeches, which seems to be of the nature to which objection can be taken. The point in issue is, as to whether this report which was submitted by ASI to the SHO and which was routed upto the higher authorities and on which no actions seems to have been taken against the Petitioner in 1982, can be used against the Petitioner for non‑franchising him from the right to contest election. We have seen the file of the department, which was made available by Mr. Sayeed A. Shaikh and we have noticed that the above file also contains certain pamphlets issued by the Petitioner against the sitting Mayor of Hyderabad. Mr. Nadvi. 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. The Petitioner had appeared before respondent No.2 and refuted the allegation that he had made the alleged speeches against the Government as alleged in the report. In our view, if respondent No. 2 wanted to take action under rule 19, he should have held further enquiry in the matter, but the above report did not warrant the passing of the impugned order. We, therefore, allow the above petition and declare the impugned order as without lawful authority and of no legal effect. The respondents are restrained from acting upon the impugned order. The Returning officer concerned shall allow the petitioner to participate in the election of Unit No.14, Hyderabad Municipal Corporation, in case the symbol allocated to the petitioner has been printed on the ballot‑papers which are made available to the Returning Officer. The petition stands disposed of w4th no order as to costs. M.Y.M. Petition allowed.