' KAMAL MUSTAFA BOKHARI, J.-This is a constitutional petition age to the orders passed by respondents Nos. 1 to 3 rejecting nomination papers loner for contesting recent election for the Membership of Union Council.
2. Petitioner filed his nomination papers to contest election as Member of Union Council, Nawan, tehsil and district Dera Ghazi Khan. Respondent No. 3, the Returning Officer, Dera Ghazi Khan, rejected it, on 8th September, 1983, on the ground that petitioner was involved in number of cases and a case had been registered against him for fraudulent entries in the voters list of recent elections and petitioner was supporter of offenders. His appeal against it was dismissed by respondent No. 2, on 12th September, 1983, on the ground that petitioner had been reported to be a bad character and was involved in many cases. It was also added that petitioner was an active member of Pakistan People's Party. Petition under section 17 of Punjab Local Government Ordinance, 1979, filed against it was dismissed by respondent No. 1, on 27th September, 1983, for the reason that petitioner failed to controvert allegations against him by documentary evidence.
Thereafter, elections were held, on 28th September; 1983, in which petitioner could not participate and respondent No. 4 was elected as a Member from Union Council, Nawan.
3. It has been urged before us by learned counsel for petitioner that his nomination papers were rejected without lawful authority on the grounds which did not disqualify petitioner under section 21 or 21-A of the Punjab Local Government Ordinance, 1979. It was contended that mere involvement in many cases, irregularities committed in the electoral list, supporting criminals, being a bad character and active member of defunct-Pakistan Peoples Party is not a ground disqualifying a candidate from contesting the election. Respondent No. 3 has filed parawise comments to the writ petition but none of the respondents Nos. 1 to 3 have contested this petition. The successful candidate in the election, respondent No. 4, has appeared in person and is represented through a counsel and has conceded the contentions of petitioner that he was not disqualified to contest the elections.
4. Section 21 of Punjab Local Government Ordinance, 1979 provides for disqualifications of candidates and members relevant portion of which is reproduced below :- "A person shall be disqualified to be a candidate or a member of a local council ;- (a), (b), (c)...
(d) if he has been on conviction for an offence involving moral turpitude sentenced to imprisonment for a term of not less than six months, unless three years have elapsed from the date of expiration of the period of the sentence ; (,f) if he for the time being is disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force."
' Section 99 (a) of the Representation of the People Act, 1976 and Article 11 of the Houses of.
Parliament and Provincial Assemblies (1 sections) Order, 1977 touch provide for disqualifications of a conduct to be elected as member Parliament and Provincial Assemblies simile disqualify a candidate ,wt.) has been convicted and not merely involved in criminal cases. The Political Parties Act, 1962, as amended by Ordinance XIX of 1976, in section 8 (a) provides that a person who has been an office-bearer of a political party and not only its member shall be disqualified from being elected as such a member.
5. In the case of Brig. (Retd.) F. B. Ali and another v. The State (1) it was held that lodging of information against a person does not make him an accused nor can a person be called accused against whom investigation is conducted by police. The election laws disqualify a candidate to contest election for membership of union council who has been convicted. The legislature did not intend to disqualify candidates other 4 than persons who had been convicted. Therefore, the impugned order rejecting nomination papers of petitioner on mere allegations was passed without jurisdiction.
6. The Returning Officer in the case in hand rejected nomination papers of the petitioner on the ground that he was involved in number of criminal cases and had committed some irregularities in the voters list and was supporter of offenders. No detail of these allegations was disclosed to the petitioner to enable him to refute it. The allegations were not proved. In law petitioner was not disqualified to contest the election on the ground on which the Returning Officer rejected his nomination papers. His appeal was dismissed on the ground that he was a bad character and active member of Pakistan Peoples Party. These new grounds could not be added in appeal which had to be decided after considering those points only against which the petitioner had filed appeal and in case the appellate authority wanted to fall back on any new ground the case should have been referred back to the Returning Officer for consideration after providing opportunity to the contesting parties to substantiate it. Introduction of new grounds by the appellate authority for rejection of nomination papers was illegal. According to law only an office-bearer of a political party is disqualified and not a member only as alleged against him.
For the above reasons we declare the orders, dated 27th September, 1983, 12th September, 1983, 8th September, 1983 of respondents Nos. 1 to 3 respectively to be without lawful authority and of no legal effect. Consequently elections to the Union Council, Nawan, district Dera Ghazi Khan, are set aside and it is directed that fresh elections to the seat in dispute shall be held by the authorities concerned. There shall be no order as to costs.
(1) PLD 1975 SC 506