1. ' ABDUL RAZZAK A. THAHIM, J.--The present petition under Article 9 of the Provisional Constitution Order, 1981, has been filed by Haji Muhammad Amin. In this petition he seeks following reliefs:-
(i) declare that the returned candidate, respondent No,1 was dis qualified to contest election from Constituency D.C.44 of District Council, Nawabshah, and that he cannot hold any elective office;
(ii) declare the election void as regards the returned candidate, respondent No,1;
(iii) declare the petitioner as returned candidate from Constituency D.C.44 of the District Council, Nawabshah;
(iv) grant any other relief that this Hon'ble Court may deem fit and necessary under the circumstances of the case;
(v) award costs of this petition.
2. ' Petitioner filed nomination paper for election of membership of District Council, Nawabshah from Constituency D.C. 44 in the election held on 21st January, 1984. The respondents Nos. 1 and 2 were also candidates from the same Constituency, Respondent No,2 Sahib Khan withdrew and according, to the results respondent No,1 Haji Ghous secured 1,471 votes while petitioner got 1,099 votes, as such the respondent No,1 was declared elected as member of the District Council from the above-said Constituency.
3. ' Mr. Hussain Shah Rashdi, learned counsel appearing for the petitioner, has submitted that respondent No,1 was member of Union Council Gher Gujo, Taluka Naushero Feroze, District Nawabshah, in his first term of Local Council election held in 1979. He seriously participated in movement of restoration of democracy (M.R.D.) on 14th August, 1983, and as a gesture of sympathy he resigned from the membership of Union Council on 25-8-1983, therefore, he stands disquali fied from holding an elected office as contemplated by sections 37 and 37-A of Sind Local Government Ordinance, 1979. Mr. Rashdi has produced Press cutting of daily "Ibrat" dated 1-9-1983 and a certificate issued by Secretary, Union Council, Cher Gujo, Taluka Naushero Feroze, in support of his contentions showing that the respondent No,1 participated in M.R.D. movement and resigned from membership of Union Council.
4. ' The petitioner and the respondent No,1 filed their nomination papers before the Returning Officer and the same were accepted. At that time no such objection regarding disqualification of respondent No,1 was raised. They seriously contested the election and results were announced in which respondent No,1 was declared elected . It is relevant to refer rule 55 of the Sind Local Government Ordinance, 1979 which reads as under:- "RULE 55.(1) The candidates, their proposers and seconders and one other person authorized by each candidate may attend the scrutiny of the nomination papers,
(2) The Returning Officer shall, in the presence of such persons referred to in sub-rule (1) as wish to attend the scrutiny, examine the nomination papers and decide any objection made to any nomination.
(3) The Returning Officer may, either ,Of his own motion or upon any objection, conduct such summary 'inquiry as he may think fit and reject any nomination paper if he is satisfied that--
(a) the candidate, is not qualified to be elected as a ember;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of rule 53 or rule 54 has not been complied with; or
(d) the signature of the proposer or the seconder is not genuine; provided that-
(i) the rejection of a nomination paper shall not in- validate the nomination of a candidate by any other valid nomination paper; and
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature, and may allow any such defect to be remedied forthwith.
(4) The Returning Officer shall endorse on every nomination paper his decision, accepting or rejecting it, and shall, in the case of rejection, record a brief statement of reasons thereof;
(5) Any candidate whose nomination paper has been rejected may file with the Returning Officer an appeal addressed to the Election Authority before such time as may be specified by it. Such an appeal shall be disposed of before such time as may be specified by the Election Authority, and any order passed on such appeal shall be final."
5. Under subsection (2) of the above section it was open for any person to attend the scrutiny and examine the nomination papers and raise any objections thereon which Returning Officer had to decide. We must state that no document of any kind has been placed before us to show that such objection was raised but on 16-1-1984 a telegram was sent by the petitioner to the Deputy Commissioner, Nawabshah. The contents of the telegram are as under:- "Ghous Bux Amanullah Qureshi worker MRD resigned 10-9-1983 membership U.C. Gher Gaju AAA He ha's filed nomination paper Ward 44 Kur Kassan Union Council Taluka Nausharo Feroze AAA Pray enquiry cancel nomination pap6r AAA Application resignation No,329 dated 10-9-1983 lying with A.D.B.D. Nawabshah."
6. This telegram seems to have been sent ,after the nomination paper of the respondent No,1 was accepted. The petitioner did not file any appeal against the acceptance of the nomination paper of respondent No,l. It may be pointed out that rule 19 of the Sind Local Council (Election Rules) 1979, had now been amended by insertion of sub-rule (5) to provide that an appeal shall lie even against the decision of the Returning Officer under sub-rule (4) although the previous rule provided for appeal in cases of rejection of a nomination paper only. It is an admitted fact in the present case that no such appeal was filed.
7. ' Even before the date of elections candidature of the respondent No,1 was not challenged by way of any application under Section 37-A of the above Ordinance. The elections took place and results were announced in spite of that the petitioner did not file any election petition as provided under rule 65 of Sind Local Council Rules, 1979. The main contention of the petitioner is that the respondent No,1 had joined M.R.D. as a gesture of sympathy for which he resigned from the membership of the Union Council, therefore, he is not qualified to contest future elections.
8. ' Under section 37-A, no person can contest an election who directly or indirectly 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. Section 37-A reads as under:- "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 manifesto 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."
9. ' We are of the view that case of respondent No,1 does not fall in any of the clauses of section 37-A as no such allegation has been made in the petition. It is also not clear as to which political party the respondent No,1 is associated. The provisions of the above amendment cannot be invoked to the persons having any affiliation or membership of the political party until and unless he had been a nominee of the party attributing party association to his opponent in terms of manifesto. In the above amended section there is embargo only that the contesting candidate is not allowed to violate the provisions of section 37-A (a), (b) and (c) but person shall be disqualified from being elected, there is specific provisions under section 37(1) A(2) which reads as under:- "37(1) A(2) A person shall be disqualified from being elected as and from being a member if--
(a) he is not or has ceased to be a citizen of Pakistan;
(b) he is an undercharged insolvent unless a period of ten years has elapsed since his being adjudged as insolvent;
(c) he is of unsound mind and stands so declared by a competent Court or is physically incapacitated;
(d) he has, on conviction for any offender, been sentenced to imprisonment and a period of three years or such less period as Government may, in any case specify, has not elapsed from the date of expiration of the period of sentence."
10. However, the petitioner has not filed election petition though remedy was available to him and all disputes relating to the election on the point of fact and law could validly be agitated by way of election petition as contemplated under rule 65 which reads as under:- "No election shall be called in-question except by an election petition made by a candidate for that election."
11. ' In view of the specific rule providing for alternate remedy the present petition is not competently may be observed that the right of the franchise or the right to contest an election js a valuable right, which cannot be deprived of unless the evidence brought before the competent authority is of independent character and in spire full confidence. On this point this Court allowed so many Constitutional Petitions and held that person cannot be disqualified under section 37(3) of the Act or any other provision on vague allegations. We refer to a case of Abdul Hussain Azad v. Provincial Election Authority Karachi and others PLD 1984 Kar. 145 and same view has been taken in an unreported case C.P. No,D-761 of 1983. These are questions of fact for which no document or evidence whatsoever has been produced before us and even otherwise the election authority or member is not competent to disqualify any person under section 37(3) of the Ordinance without enquiry or affording opportunity of being heard to the person concerned.
12. ' In these circumstances, this Constitutional Petition is without merfit and is dismissed with no orders as to costs.