NASIR ASLAM ZABID, J.-Through this constitutional petition, the order dated 3-10-1981 of the learned District Judge, Hyderabad is challenged which was passed by him in Disqualification Election Petition No. 14/79 filed by respondent No. 1 against the petitioner. Briefly the facts are that election for Municipal Council from Electoral Unit No. 51 (U. C. 30), Hyderabad took place on 25-9- 1979. In all there were 9 candidates. The petitioner secured the highest number of votes, i. e. 569, with respondent No. 1 getting 445 votes. Reference to 'votes secured by other 7 candidates is not relevant as they bad secured much less votes and they are not parties to the present constitutional petition. After the petitioner had been declared elected, respondent No. 1 filed an application before the District Judge, Hyderabad, as the notified Officer, under section 37-A of the Sind Local Government Ordinance, 1979 praying that the petitioner may be disqualified under section 37-A and that he should be debarred from taking part in elections for a period of 4 years.
The concerned parties, namely, the petitioner ' and respondent No. 1 adduced ,evidence in the form of affidavits and the deponents of the affidavits were then cross-examined by the other party.
Respondent No. .1 filed his own affidavit and those of two witnesses, namely Syed Hussain and Nizamuddin. Affidavits of two other witnesses were also filed by respondent No. 1 but as they were not tendered for cross-examination by the petitioner they were given up and their affidavits were not considered by the learned District Judge. The petitioner filed his own affidavit and that of one Bashiruddin, who were cross-examined. Affidavits of two other witnesses were filed by the petitioner but as they were not tendered for cross-examination, their affidavits were not taken into consideration by the learned District Judge.
2. We have heard Mr. Makhdoom Ali Khan, learned counsel for the petitioner, Mr. Abdul Sattar Shaikh, learned Additional Advocate-General for respondent No. 2 (the District Judge, Hyderabad), and respondent No. 1 who, appeared in person. Respondent No. 1 was asked whether he was aware of the English language, on which he replied in the negative. In the circumstances, after the arguments had been concluded by learned counsel for the petitioner, the Court explained the arguments advanced on behalf of the petitioner to respondent No. 1 in Urdu and then respondent No. 1 addressed his arguments. We may reproduce here paras. 5, 6 and 7 of the impugned order dated 3-10-1981 of the learned District Judge which not only refer to the evidence led on behalf of the parties but also give the reasons which persuaded the learned District Judge in accepting the application under section 37-A filed by respondent No. 1 ;-- "Pare. S.-From the affidavits filed by the parties, one fact is uncon--troverted that the opponent had arranged an Eid Milan Party on 29th August, 1979 and he bad extended invitations on printed cards in his capacity as General Secretary, City Muslim League, Latifabad, Hyderabad, and the meeting was largely attended and it was addressed by Nawab Muzaffar Hussain, then Vice- President, Pakistan Muslim League and President, Zonal Muslim League, Sind, and the news was given publicity in the National Press and a photograph of the meeting was published in the newspapers. Such a large function was, obviously, a political party venture for election canvassing.
Para. 6.-The other fact having bearing on this application is publication of a news item in daily `Jang', Karachi, in its issue of 17th September, 1979, that the opponent had been re-elected as the General Secretary of Hyderabad Muslim League, Chattha Group, along with other office---bearers.
This news was not contradicted. To meet this situation, the opponent has stated that he had resigned from the post of the General Secretary, on 2-9-1979, and he has produced an affidavit, to that effect of Nawab Muzaffar Hussain and also a certificate issued by him as the President, Sind Zonal Muslim League (Chattha Group), Sind. Neither the affidavit is dated nor the certificate. Nawab Muzaffar Hussain did not appear to confirm the fact. This news did not appear in any paper. Such an important news must not have gone unpublished. Even if the opponent had resigned, he could be re-elected as notified in the press on 17th September, 1979, as indicated above.
Para. 7.-The election where from this petition has arisen was held on 25th of September, 1979. The programme of the election was pub--lished by the Provincial Election Authority, Sind, in the Sind Govern--ment Gazette dated 3rd September, 1979, whereby the actual election process started from 6-9-1979 and dates for various stages thereof were notified and they ranged from 6-9-1979 to 29-9-1979. The election campaigning must have started sufficiently earlier. Evidently, the two events of Eid Milan Party and the re-election of the opponent as the General Secretary of a political party took place during the course of election campaign and they displayed the opponent's associa--tion with and affiliation to a political party viz. The Muslim League, Chattha Group, as provided under section 37-A (1) of the Sind Local Government Ordinance, 1979, and earned disqualification for him to continue to be the member to the Council and from being elected as a member for a period of four years. It is, accordingly, declared that the opponent contested and won the election by displaying his association with and affiliation to a political party viz. The Muslim League, Chattha Group, and it is ordered that he shall cease to be one member of the Council from this day and shall stand disqualified for being elected as a member for a period of four years."
3. Mr. Makhdoom. Ali Khan, learned counsel for the petitioners, submitted that according to the impugned order dated 3-10-1981 there were two pieces of evidence on the basis of which the learned District Judge accepted the application under section 37-A of respondent No. .1 in disquali- -fying the petitioner and these are the Eid Milan party given by the petitioner on 29-8-1979 in his capacity as General Secretary, City Muslim League Latifabad, Hyderabad, and secondly the news item in daily "JANG" in its issue of 17-9-1979. A perusal of the aforesaid three paragraphs of the impugned order confirms the submission of learned counsel for the petitioner that these, were the only, two pieces of evidence oil which the order of the learned District Judge allowing the application under section 37-A is based.
4. After referring to the aforesaid two pieces of evidence, learned counsel for the petitioner contended that section 37-A was added to the Sind Local Government Ordinance, 1979 on 7-9-1979 and that this amendment has to be given prospective effect as there is nothing in the aforesaid sec--tion 37-A to give even an indication that the framers of this amendment wanted to give retrospective effect to this provision. The contention of learned counsel is correct. Prior to 7-9-1979, the dis-qualifications of a candidate were categorised in section 37 of the 1979 Ordinance and till the introduction of section 37-A there were no restrictions as are embodied in section 37-A. In the circumstances, it was contended that even if the Eid Milan Party of 28-8-1979 is accepted as a party given by the petitioner for the purposes of and for gaining any advantage in the ensuing elections, as at that time section 37-A was not a part of the 1979 Ordinance and as under no other provisions of the 1979 Ordinance was there any restriction on the petitioner for giving such a party, this piece of evidence relating to giving of an Eid Milan Party could not be taken into consideration for making it a ground for granting the application under section 37-A filed by respondent No. 1. The contention of learned counsel has substance and as we have already observed that section 37-A cannot be given retrospective effect, the Eid Milan Party having taken place on 29-8-1979, much before the introduc--tion of section 37-A into the 1979 Ordinance, the fact that such a party was given and that it had a political colour or tinge and has been given for gaining advantage at the election by attracting potential voters, would no disqualify the petitioner under section 37-A.
5. As regards the other piece of evidence relating to the news item appearing in the issue dated 17- 9-1979 of the daily "JANG", Karachi, the contention of learned counsel for the petitioner was that even if it was admitted that the petitioner had been re-elected as the General Secretary of Hyderabad Muslim League, Chattha Group, this fact by itself without anything more is not sufficient to disqualify the petitioner under section 37-A. We may reproduce here section 37-A (1) of the 1979 Ordinance, which reads as follows :- "Section 37-A.--(1) Notwithstanding any other provisions of this Ordinance, no person contesting an election under this Ordinance shall, for the purpose of such election directly or indirectly-
(a) give out himself as a candidate or nominee of political party, or display or carry any insignia, flag or any such other thing indicating his association with or affiliation to such party ;
(b) seek vote or support on party basis or in terms of the manifest of any political party, or by attributing party affiliation to his opponent ; ,
(c) claim or receive any financial or other assistance from any political party.
(2) If the Election Authority after such enquiry as it deems fit is satisfied that any person is acting or has been elected in contravention of the provisions of subsection (1) it shall order that such person shall cease to be a candidate for such election or as the case may be, to be member, and shall stand disqualified for being elected as a member for a period of four years Provided that no such order shall be passed without affording the person concerned, an opportunity of being heard.
(3) The Election Authority may require any Judicial Officer of the rank of a District Judge, or Additional District Judge, to, conduct an enquiry under subsection (2) and pass such orders as he deems fit."
A reading of section 37-A shows that the restrictions that are placed thereunder for a candidate are that he should not, for the purpose of election, directly or indirectly (i) given out himself as a candidate or nominee of a political party, or (ii) display or carry any insignia, flag or other things indicat--ing his association with or affiliation to such political party, or (iii) seek vote or support on party basis, or (iv) claim or receive any financial assistance from any political party. From this it follows that what has to be established is no merely that the candidate was a member or office- bearer of a political party but that he must, for the purposes of the election, give out himself, direct or indirectly as a candidate of the political party. In the present case, n poster or any other material was produced to show or establish that for the purposes of the said election, the petitioner had given himself out as a candidate of the political party or that he had displayed or carried an insignia or flag indicating his association with the political party. It has also not been established by evidence that the petitioner sought any vat or support on party basis on that be claimed any financial or other assistance or received any such assistance from any political party. Further from the impugned order it is apparent that the learned District Judge, was under the impression that the mere fact that the petitioner had been re-elected as General Secretary of Hyderabad Muslim, League, Chattha Group was sufficient under section 37-A for disqualification we cannot agree with the District Judge on this point. Mere election of a person as an office-bearer of a political party was not sufficient to disqualify a person under section 37-A. What was required was to establish some thing more as laid down in sec--tion 37-A and form the evidence on record and from the other dated 3-10-1981 of the learned District Judge, it is apparent that this was not established.
6. In the circumstances, the impugned order dated 3-10-1981 of the learned District Judge allowing Disqualification Election Petition No. 14/7 cannot be sustained and the same is declared to have been passed without lawful authority and to be no legal effect and is quashed. This petition is accordingly allowed. There will, however, be no order as to costs.