NISAR AHMAD Versus DEPUTY COMMISSIONER , Abdul Fattah Malik

1. NASIR ASLAM ZAHID, J.‑‑ The petitioner had filed nomination papers for contesting Local council election against Seats in Units Nos. 36, 38 and 39 of District Council, Sukkur. His nomination papers were accepted by the Returning Officer/Deputy Commissioner, Sukkur but on appeal filed by respondent No.4, also a candidate for election but only in respect of seat in Unit No.39, the appellate authority/ Commissioner Sukkur Division, Sukkur, set aside the order of the Returning Officer and rejected the nomination papers of the petitioner for all the three Units. The relevant part of the order dated 17‑11‑1987 of the appellate authority is as follows:‑

2. "I have seen the memo. of appeal. Perused the case record and heard the parties at length. The involvement of the respondent in anti‑social activities indicated by his detention. I accordingly, set aside the order of the R.O./D.C. Sukkur and accept the appeal. The nomination papers of Mr. Nisar Lund for the se is DC‑36, 38 and 39 are hereby rejected."

3. We have heard Mr. M.A. Rashid, learned counsel for the petitioner, Mr. Zawar Hussain Jafferi, learned A.A.‑G. for the official respondents Nos. 1,2 and 3 and Mr. Abdul Fattah Malik, learned counsel for the respondent No.4 who had filed the appeal before the appellate authority and who has also filed a counter‑affidavit supported by various documents.

4. From the impugned order dated 17‑11‑1987 of the appellate authority it follows that the only ground on which the nomination papers of the petitioner have been rejected is that he was detained pursuant to detention orders passed by Deputy Commissioner, and Secretary, Home Department, Government of Sind under section 3 (1) of the Maintenance of Public Order Ordinance, 1960 and this is reflected in the part of the order reproduced hereinabove.

5. It is apparent that the only provision under which the nomination papers of the petitioner have been rejected by the appellate authority is perhaps clause (g) of section 37 (2) of the Sind Local Government Ordinance, 1979 which reads as under:‑ "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;

6. 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."

7. It has also been argued by the learned A.A.‑G. as also by Mr. Abdul Fattah Malik, learned counsel for respondent No.4, that it is sub‑clause (g) of section 37 (2) of the 1979 Ordinance which is attracted in this case and the nomination papers of the petitioner have been correctly rejected by the appellate authority.

8. The record relating to the orders of detention passed by the District Magistrate, Sukkur and the Secretary, Home Department, Government of Sind, is available with the learned A.A.‑G. Apart from a report of S . H . O. Yaru Lund Police Station dated 29‑5‑1987 there was no other material available with the detaining authorities. The photostat copy of this report of S.H.O. Police Station Yar Lund has been placed on record by the learned A.A.‑G. on our direction. The report shows that only vague allegations have bee made. Not even a single specific instance has been mentioned in the report. No times or places are mentioned where or when even the acts alleged to have been committed generally by the petition mentioned in such report were committed.

9. In. our view, therefore, the two orders passed by he District Magistrate, Sukkur and the Secretary, Home Department, Government of Sind under section 3 (1) of the Maintenance of Public Order Ordinance 1960, on the basis of any such solitary, vague and genera report of S.H.O. Police Station Yaru Lund, cannot be formed the basis of an order by the appellate authority rejecting the nomination papers of the petitioner on the ground that such orders bring the case of the petitioner within the mischief of clause (g) of section 3

(2) of the Sind Local Government Ordinance, 1979.

10. Mr. Abdul Fattah Malik, learned counsel for respondent No.4, however, had submitted that apart from these detention orders, there are various F,.I.Rs. lodged against the petitioner at Yaru Lund police station and copies of certain reports and other copies from the case diaries of the police station have been filed alongwith the counter affidavit of respondent No.4; We had asked Mr. Abdul Fattah Malik, learned counsel for respondent No.4 about the authenticity of these documents which appeared to be photostat copies of some police diaries and how learned counsel had attested these photostat copies, on which learned counsel stated that by mistake he had attested these copies. In the circumstances, we considered it proper to record the statement of respondent No.4 who was present in the Court. Respondent No.4 was given oath and some questions were asked by the Court from him and his answers show that no explanation has been given by respondent No.4 as to how he was able to obtain photostat copies of these documents. He stated, in answer to a question from the Court that his brother, who is an M.P.A. had obtained these copies but he did not know as to how his brother had obtained these copies. In the circumstances there is a big question mark on the authenticity of these documents.

11. Even otherwise if these doucments are taken as correct copies of the originals, this would only show that certain F.I.Rs. had been lodged at Police Station Yaru Lund. First, we may observe that the order dated 17‑11‑1987 of the Commissioner/ appellate authority has not relied upon any such F.I.Rs. or the case diaries. Secondly, it is an admitted position, in view of the statement made by the learned A.A.‑G., that in none of such cases any process has been issued to the petitioner and none of the cases has reached the Court in the sense that no challan has been filed before any Court in so far as the petitioner is concerned. In view of only this material which has been placed by Mr. Abdul Fattah Malik on record, even if the authenticity of such record is accepted, it cannot be said that the case of the petitioner comes within the mischief of clause (g) section 37 (2) of the 1979 Ordinance.

12. Mr. Abdul Fattah Malik, learned counsel for respondent No.4 had emphasised upon the words "is known to be" used in clause (g) of section 37 (2) but merely filing of F.I.Rs. against a candidate without any other material to show that the candidate is involved in cases which can be considered as cases involving activities prejudicial to the interests, security, integrity or solidarity of Pakistan, the case would not fall within the mischief of clause (g) of section 37 (2) of 1979 Ordinance.

13. As a result, Constitutional Petition No.D‑294/87 is allowed an the order dated 17‑11‑1987 passed by the Commissioner Sukkur Division, Sukkur/appellate authority Local Bodies Elections, 1987 in appeal No. SUK‑9/87 is declared to have been passed without lawful authority and to be of no legal effect. The result is that the order of the Returning Officer accepting the nomination papers of the petitioner is restored and the petitioner is, therefore, entitled take part in the forthcoming elections. It is informed that symbols have already been allotted to candidates whose nomination papers had been accepted. The Returning Officer/Deputy Commissioner, Sukkur is directed to allot symbols to the petitioner by tomorrow i.e. 24‑11‑1987.

14. There will be no order as to costs.

15. M . Y . H . / N‑86/ K Petition allowed