' IBADAT YAR KHAN, J.-This and the connected Petition No, 10/84 arises out of a single order, dated I 1th January, 1984. The impugned order was passed by the Commissioner, respondent No, 1 in respect of two constituencies namely D. C.-25 and U. C.-2 and 6 of Union Council Sami Taluka Gambat, District Khairpur. As the order is the same this present judgment would dispose of the two Petitions Nos. 10/84 and 13/84 filed by the same petitioner challenging the validity of the same order.
2. The petitioner and several others were desirous of contesting the elections for a seat in the Local Bodies Elections from constituency Unit No, D-25 District Council, Khairpur and Unit No, U.C. 2 and 6 of Union Council Sami, Taluka Gambat, District Khairpur. They filed nomination paper and the nomination papers of the petitioner and two others namely Imdad Ali Sahito and Wadero Fateh Ali were accepted by the Deputy Commissioner/Returning, Officer Khairpur. The petitioner filed an appeal before the Commissioner, respondent No, 1 against acceptance of nomination papers of his rivals Imdad Ali and Wadero Fateh Ali. The Commissioner after hearing the petitioner and Imdad Ali accepted the appeal and declared that Imdad stood disqualified on account of his affiliations with P. P. P. And M. R. D. And for other reasons. This order was passed in terms of section 37 (2) (g) of the Sind Local Government (IInd Amendment) Ordinance, 1983.
3. The matter did not end here. The respondent No, 1 taking suo mow action against the petitioner disqualified the petitioner from taking part in the election and rejected the nomination papers, of the petitioner which had been accepted by the Deputy Commissioner/Returning Officer on 4th January, 1984. This order was passed by the respondent No, 1 under section 19 (6) of the Sind Local Council (Election) Rules, 1979 as amended. Rule 19 pertains to the scrutiny of nomination papers.
Relevant sub-clause of this rule 19 are reproducsd for ready reference :- "19 (4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it, and shall in the case of rejection record reasons therefor.
19 (5) (as amended). An appeal against the decision under sub-rule (4) shall lie to the Commissioner of the Division or the District Magistrate of the District as may be authorised in this behalf by the Election Authority and shall be filed and disposed of by the date specified in the Election Programme.
19 (6) The appellate authority may, suo motu revise the decision within the period specified in the Election Programme for filing and disposal of appeal under sub-rule (5)."
4. Before examining the impugned order and the objections raised against it by the petitioner it would be appropriate to first have a look on the provisions of relevant clause of section 37 of the Sind Local Government Ordinance, 1979 as amended under which the disqualification has been suffered by the petitioner :- "Section 37 (2) (g)-A person shall be disqualified from being elected as and from being a member if-
(g) 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 ; ' Explanation-For the purpose 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 disorders."
37 (3). No person shall be eligible to be elected as, and to be a member if he has at any time on or after the 20th December, 1971 been a member of an Executive Committee, by whatever name called, or an office-bearer, of a political party at local, district provincial or national level, provided that nothing herein contained shall apply to a person who is a member of the Federal or Provincial Cabinet or of Federal or Provincial Council or of any Council, immediately before the coming into force of the Sind Local Government (Second Amendment) Ordinance, 1983.
It is evident that vast powers are given to the Commissioner and the Commissioner in exercise of these powers can pass an order which would deprive a candidate from his valuable right of taking part in the elections and getting himself elected to a seat in one of the local bodies to which this act applies.
' It is, therefore, the function and obligation of the Courts to see that such vast powers placed in the hands of the Commissioner are dot A misused by the Commissioners consciously or even unconsciously because the consequences of exercise of the power in a questionable or even objectionable manner would have far-reaching consequences and would make or mar the carrier of citizen aspirant of serving his people through the local bodies and deprive the candidate from enjoying the status of an elected representative of the people.
The first requirement to fulfill before the Commissioner embarks to this power should be that he should afford full opportunity to the candidate to defend himself and clear any misunderstanding in the" mind of the Commissioner before he is condemned to be a person who is :
(a) Opposed to the ideology of Pakistan, or
(b) 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."
' To enable the candidate to put up an effective and meaningful defence. He should be afforded as much opportunity, if not more as is afforded to an accused person charged with any criminal liability. The few most essential requirements which are prerequisite of exercise of power by the Commissioner may be enumerated as under : -
(1) That the candidate against whom allegations have been mad must have full knowledge of those allegations.
(2) He must know the names of the accusers to enable him to attack their credibility and competency for making those allegations.
(3) He must have full opportunity to cross-examine the persons who have labelled the adverse allegations in order to shake their credibility and belie their accusations.
(4) He must have full opportunity to produce evidence in rebuttal by examining oral evidence as well as to produce documentary evidence if necessary.
5. The quality and quantity of the evidence to be produced before the Commissioner for decision of this very sensitive issued would depend on the nature and circumtances of each case. But, as his decision is so vital from the point of view of the candidate the Commissioner must strain all his capabilities in disposing of the case. Merely passing any stereotype order without applying his mind and without bestowing attention to the facts of the case in the fullest measure will amount to abuse of power and is bound to result in miscarriage of justice. When the order passed by the Commissioner is examined it reveals that the learned Officer has simply produced a stereotype accusations. There is no discussion of the accusations, no mention of the denials and rebuttal no attempt to assess and evaluate the respective contentions of the parties. The analytical approach which is very necessary for any judicious approach is totally lacking in this case. On the point of complete denial of opportunity to the petitioner to defend himself mere reading of paragraph 3 of this impugned order would be enough. Paragraph 3 of the order is as follows :- "3. The Deputy Commissioner has furnished an attested copy of a source report, dated 11th January, 1984 in which it has been mentioned that candidate Razikdino son of Muhammad Hussain Sial is an active worker of P. F. P. He has filed nomination paper on 16th August, 1983 for November, 1983 Elections but on the appeal of M. R. D. To boycott elections, he had withdrawn his nomination paper in support of M. R. D. There is another source report also that the candidate had joined hands with the M.R.D. In boycotting the Local Bodies Elections of 1983. The candidate was given a chance to explain as to why he had withdrawn his earlier nomination paper. He replied that he had done so under pressure by his rival group. Order No, NVC/IG/R8/83, dated 28th September, 1983 passed by the former Deputy Commissioner, Khairpur has also been brought to my notice. This order was passed by the Deputy Commissioner on an application presented to him by candidate Razikdino requesting restoration of his nomination paper which he had withdrawn. The concluding paragraph of this order clearly shows that the candidate had not withdrawn his nomination paper under any duress. All these facts put together, give rise to an inference that the candidate had not withdrawn his earlier nomination paper under any pressure as asserted by him, but in response to the appeal of M. R. D. To boycott election.
(4) From the above facts it is abundantly clear that the candidate has responded to M. R. D's call to boycott elections, being an active member of the defunct-P. P. P. Thus, his case is hit by section 37
(2) (g) of the Sind Local Government Ordinance, 1979 as amended which would render him disqualified from being elected as a member of any Local Council. Accordingly, I order that his candidature for District Council, Khairpur Unit No, D. C. 25 or any other Local Council, shall stand cancelled."
6. The above discussion in the order is nothing but a one-sided story reproduced by this learned appellate authority. Neither the two sources mentioned in the order have been disclosed nor indeed the con-E tents of those source reports are brought to light. Without giving! Opportunity to the petitioner to say a word about the proceedings where his attempt to refile his nomination paper, which according to him he had withdrawn under pressure, the author of this order hastens to draw "an inference that the candidate had not withdrawn his earlier nomination papers under any pressure, as asserted by him, but in response to the appeal of M. R. D. To boycott elections."
7. In my view this order cannot be approved and the petitioner's valuable right of franchise cannot be taken away from him merely by drawing inferences against him. Similar view has been taken by other brother Judges. In the following unreported cases on which reliance has been placed by the petitioner. I respectfully follow the reasoning's in these cases.
(I) Constitutional Petition No, D-119 of 1983.
(2) Constitutional Petition No, D-714 of 1983.
(3) Constitutional Petition No, D-705 of 1983.
8. As the cases cited above have direct bearing on the point involved in this petition. It is not necessary to make a search for support of the proposition that a man cannot be condemned unheard. The position in law is well-established now. Even in cases relating to arrest and preventive G detention under Public Security Act and other, similar statutes. The person concerned is appraised of the incriminating material to be used against him and he it, given a chance to deny the charges. The learned Assistant Advocate-General, who appeared on behalf of the two respondents in support of this order, contended that the petitioner was apprised of the allegations contained in the source reports. I am afraid there is no such discussion in the order itself but even if I credit the respondent No, I for having done so mere recitals of the allegations in the source reports which itself was furnished to the respondent No, 1 on 11th January, 1984 would not suffice. In law opportunity to defend and contest the accusations should be real and meaningful and not a mere ritual or formality.
9. The result is that the petition is allowed to the extent that the impugned order, dated 11th January, 1984 is declared as without lawful authority and of no legal effect. So far as the prayer for direction to respondent No, 2 is concerned it cannot be granted because the case of the petitioner will have to be examined according to the rules applicable for his participation in any poll. Petition is allowed with costs in the above terms.