1. ' IBADAT YAk KHAN, J.-The petitioner and respondent No, 1 were candidates, for a seat in the District Council, Khairpur Unit No, DC-25 and Union Council Sami Unit No, 10, Taluka Gambat, District Khairpur. Respondents Nos. 1 and 5 were also candidates for the same seat from the same constituency.
2. ' The petitioner filed his nomination paper before the Deputy Commissioner/Returning Officer, Khairpur and after scrutiny the nomination paper was accepted by the said Officer.
3. ' Respondent No, 1 filed an appeal against this decision of the respondent No, 3 before the respondent No, 2 on the allegation that the petitioner was closely associated with the defunct-P. P.
4. P. And in response to the call of M. R. D. For boycotting the election, he had withdrawn his candidature in November, 1983 election. Thus, he was not qualified for being elected as a member of the District Council as provided under the Sind Local Councils (Election) Rules, 1979.
5. ' The petitioner contested these allegations and while admitting that he had withdrawn from the contest asserted that this withdrawal was not in response to any appeal from the M. R. D. But was on account of pressure and "under duress". The petitioner further denied' the allegation that he had any link with the defunct-P. P. P.
6. ' The respondent No, 2, proceeded to examine the case of the petitioner and for forming an opinion whether to allow the petitioner to remain in contest for this post or to declare him "a person disqualified from being elected as a member" took into consideration, material communicated to the respondent No, 2 by respondent No, 3 who in turn had received the same from some "source report", dated 11th January, 1984. What were the allegations/charges and from which source and through which agency they were obtained was not disclosed to the petitioner before of at the time of hearing or till today. By force of section 37(2) of the Sind Local Government (Second List)
7. Ordinance, 1983, dated 13th August, 1983 a candidate suffers disqualification and becomes ineligible for membership of the council :- "if 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."
8. ' The expression "activities prejudicial to the interest, security, integrity or solidarity of Pakistan" has been explained in the statute to mean and include "instigation to any section of people with a view to creating lawlessness and disorder".
9. ' The respondent No, 2 in his order, dated llth January, 1984 has given the following treatment to the case of the petitioner. Paras. 3, 4 and 5 of this order need special mention and attention for deciding the contevtions raised by the learned counsel for the petitioner :-
3. "The Deputy Commissioner, Khairpur has forwarded to me an authenticated copy of a source report, dated 11th January, 1984 in which it has been stated that the respondent Imdad Ali Khan Sabito, is an active worker of P. P. P. He had previously filed nomination paper for November, 1983- Elections but on the directions and appeal of M. R. D. He had withdrawn his candidature in support of M. R. D.
4. The fact that the respondent had boycotted November, 1983 Elections, is undisputed. He could not satisfactorily explain the reasons for boycott. The appellant's accusation that the withdrawal of candidature by the respondent was an outcome of his response to M. R. D. Appeal for boycotting elections, prima facie, seems to be well-founded. It gets further support from the source report, referred to in para. 3 above.
5. From the above facts, it is clear that the respondent was not qualified for being elected as a member of any local Council. The fact that he owed allegiance to defunct-P. P. P. And aligned himself with M. R. D. Are proved from his boycott of November, 1983-Elections. As mentioned earlier, he did not say anything in rebuttal. A simple statement that he had done so under certain pressure, could hardly be of any avail of him. For all these reasons, I order under section 37(2)(g) of the Sind Local Government Ordinance, 1979, as amended, that the respondent's candidature for District Council, Khairpur, Unit No, DC-25 or any other Local Council, shall stand cancelled."
10. ' Mr. Shaikh Ayaz, learned counsel for the petitioner has attacked the validity, legality and prosperity of this order on the following grounds
(I) that "the source report" which forms the foundation of the decision of respondent No, 2 defranchising the petitioner from holding the public office under the Local Government Ordinance, 1979, has remained a sealed book so far as the petitioner is concerned. He is completely in dark about the nature of allegations and charges that might have been made against the petitioner in this "Source Report" and as such he was not only handicapped but totally deprived of his right to challenge these allegations and charges. The learned counsel contends that the petitioner does not know till now whether he should defend himself for being opposed to the ideology of Pakistan or for being a member of any such group of persons involved in activities prejudicial to the interest, security and integrity or solidarity of Pakistan or for having played any role in instigating, any section of the people with a view to creating lawlessness and disorder.
11. Assuming the petitioner takes it upon himself to generally deny these conjectural and baseless charges on the assumptions of possibilities and probabilities, still be would need further information about the precise nature of accusations and about the persons making these accusations, in order to put up a meaningful defence.
12. ' Without marking any of these pieces of evidence available to the petitioner and yet passing an order on such a source report amounts to complete denial of justice and condemning the petitioner unheard. The learner counsel contends that such an order is repugnant to the basic concept of, justice, is in total disregard to the principle of audi alteram part em and a nullity in law and liable to be quashed. We have no hesitation to accept the contentions raised and would quash the proceedings against the petitioner resulting in the order, dated 1st November, 1983 and declare that the order has no legal effect.
13. ' The view we are taking is shared by brother Judges of a number of petitions involving precisely the same points be made of the following petitions which have disposed D. B's. Of this Court :- this Court in Mention may of by different.
(1) Coast. Petition No, 119 of 1983.
(2) Const. Petition No, 714 of 1983.
(3) Const. Petition No, 705 of 1983.
14. ' Additionally there is substance in the contention of the learned counsel that the finding of respondent No, 2 to the effect that "the fact that he owed allegiance in defunct-P. P. P. And aligned himself with M. R. D. Are proved from his boycott of November, 1983 elections" is a perverse approach and absolutely unjudicious finding. Mere withdrawal,' or retirement from the contest, without any other supporting evidence! Cannot justify the assumption that the petitioner owed allegiance to the P. P. P. Or was indicative of his alignment with M. R. D. We would therefore not maintain the finding of the respondent No, 2 on this point as well.
15. ' Mr. Shaikh Ayaz wanted to advance further arguments on the question that withdrawal of the petitioner from the contest was not on account of the appeal made by M.R.D. But on account of pressure and duress exercised on the petitioner to retire from the contest. But even assuming for the sake of arguments that such a withdrawal was motivated on account of the appeal of the M. R.
16. D. Appealing the candidates to boycott the elections it would not be a ground to disqualify the petitioner for a period of 4 years from contesting for any office created under the Sind Local Government Ordinance, 1979. The withdrawal, if at all it was in response to the appeal of the M. R. D.
17. Was according to the submission of the learned counsel, a part of the electoral process incidental to the political o electoral activity through which this process had to run its course. The M. R. D.'s appeal was part of permanent that was created on account of the countrywide electioneering campaign. Views and opinions in relation to the existing socio-Political order or candidacy of those who wanted to project themselves as incumbents to different offices in that !C order, is nothing but a move in the same of politics. Not to take part in a poll or to take a part in a poll may be opposed to and counter to the views pressed by one and opposed by another group. But none of the two views can be said to be "opposed to the ideology of Pakistan or can be described as an activity prejudicial to the interest security, integrity or solidarity of Pakistan." To visit the petitioner with the extreme penalty of disqualification for subscribing to the view a not participating in poll is most unwarranted and against the spirit of the law itself.
18. To support or oppose a political set up or raise a debate regarding merits and demerits of different issues at polls and canvass support for different points of views in a peaceful merrier and within the limits prescribed by law cannot be termed as opposition to the ideology of Pakistan or "prejudicial to the interest, security,' integrity or solidarity of D Pakistan".
19. ' The contention that alignment with the M. R. D. And/or following or subscribing to the political thinking of the M. R. D. Or its component defunct-parties, cannot form a basis for disqualification under section 37(2) of the Act has merit and cannot be rejected.
20. The result is that this petition is allowed to the extent that the order, dated 11th January, 1984 disqualifying the petitioner from participating in the election of the Council is declared as having been passed without lawful authority and is of no legal effect. Any prejudice already suffered on account of this order cannot be eradicated in this petition. The petitioner before us may have other remedies by way of election petition for redress of his grievance, if elections in which he was unlawfully prevented from taking part have already been held.