MUHAMMAD HASIL BHUTTO Versus DISTRICT MAGISTRATE, SUKKUR

1. NASIR ASLAM ZAHID, J.‑‑ The petitioner has filed this Constitutional Petition under article 199 of the Constitution challenging the rejection of his nomination papers for the forthcoming Local Bodies Elections scheduled to be held on 30‑11‑1987 from electoral Unit No.6 T.C. Daharki, Taluka Ubauro, District Sukkur. The petitioner's nomination papers were rejected by the Returning Officer by order dated 13‑11‑1987 and the order reads as follows:‑

2. " I have examined this nomination paper in accordance with the provisions of rule 19 of the Sind Local Council (Elections) Rules 1979 and decide as follows. is rejected on the grounds that he was involved in cases as given below which I feel being against the Country should not be over‑looked though some time has lapsed.

(1) Cr.32/74 under section 47/49 D.P.R

(2) Cr. 26/81 under section 121, 121‑A and 124‑A.

(3) Cr. 59/84 under section 14 Hudood.

(4) Cr. 26/86 under sections 148, 147 and 447."

3. The appellate order has not been filed as according to the learned counsel for the petitioner, copy of the appellate order was not supplied to the petitioner. The record is, however, available with the learned A . A .‑G . and it shows that the appeal had been filed. In the parawise comments received by the A.A.‑G. from the appellate authority/ District Magistrate, Sukkur, it is stated that the petitioner was heard and after due consideration the appeal was rejected in accordance with law under section 37(2)(g) of Sind Local Government Ordinance, 1979.

4. As far as crime No.32/74 is concerned, learned A.A.‑G. states that the record shows that the petitioner had been discharged in that case. As regards crime No.26/81 under sections 121, 121‑A and 124‑A, P.P.C. it is informed by the learned A.A.‑G. on the instructions on the basis of the record available with him, that the case is pending but no challan has been submitted yet although nearly six years have passed since the registration of the case. As regards crime No. 59/84 under section 14 of some Hudood Ordinance or Order (no details are given in the impugned order), Mr. Zawar Hussain Jafferi, states that the proceedings against the petitioner were stopped and the petitioner was released. The only other case mentioned in the order dated 13‑11‑1987 by the Returning Officer is crime No.26/86 under sections 148, 147 and 447, P.P.C. It is informed by the learned A.A.‑G. that the case has been challaned against the petitioner and it is pending before Civil Judge and F.C.M., Mirpur Mathelo. Section 447 , P . P . C . relates to criminal trespass and this provision reads as under:‑

5. "Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both."

6. In view of the statement made by the learned A.A.‑G. about the four cases, we cannot uphold the orders passed by the Returning Officer and the appellate authority. Clause (g) of section 37 (2) of the Sind Local Government Ordinance, 1979 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;

7. 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."

8. In so far as the first three crimes are concerned, they have ended/ terminated in favour of the petitioner. As far as the four crime, namely, crime No.26/86 under sections 148, 147 and 447, P.P.C. is concerned, by no stretch of imagination for challan of a candidant under this provision of the Pakistan Penal Code, it can be said that& his case is covered by clause (g) of section 37 (2) of the Sind Local Government Ordinance, 1979. Criminal trespass for which the punishment is three months and a fine of Rs.500 cannot be described as an offence or an act which is opposed to the ideology of Pakistan or that the accused will be deemed to be member of the group o persons involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan.

9. As a result, the Constitutional Petition No. D‑298 of 1987 allowed and the orders of the Deputy Commissioner/ appellate authority, District Sukkur and S.D.M./Returning Officer, Town Committee Daharki, at Mirpur Mathelo are hereby declared to have been passed' without lawful authority and to be of no legal effect. As a consequence the‑ nomination papers of the petitioner are deemed to have been accepted and he can take part in the forthcoming elections scheduled for 30‑11‑1987. It is informed that symbols have already been allotted to the candidates whose nomination papers have been accepted. It is directed that by tomorrow i.e. 24‑11‑1987, the S.D.M./Returnin Officer Town Committee, Daharki, Mirpur Mathelo will allot a symbol to the petitioner.

10. There will be no order as to costs.

11. M . Y . H . /M‑413/ K ‑‑‑‑‑ Petition allowed