' IBADAT YAR KHAN, J.-This petition raises an issue of fundamental importance and far-reaching consequences. The facts of this petition are that petitioner Wadero Fateh Ali was a candidate for District Council, Khairpur, Unit No, D-C.-25. He filed his nomination paper and his nomination paper was accepted by the respondent No, 2 as Returning Officer for District Khairpur vide his order, dated 4th January, 1984. The rival candidate who was also aspiring to be elected from this seat filed an appeal before the Commissioner, Sukkur Division being the appellate authority praying that the nomination paper of the petitioner be rejected on the ground that according to him "the respondent was closely associated with the defunct-P. P. P. And in response to the call of M. R. D. For boycotting the Elections, he had withdrawn his candidature in November, 1983 elections. Thus, he was not qualified for being elected as a member of the District Council, as provided in the Sind Local Council (Election) Rules, 1979."
' The Commissioner, respondent No, 3, on these allegations raised in the appeal before him issued notice to the petitioner, and relying on "authenticated copy of source report, dated 11th January, 1984," forwarded to him by the Deputy Commissioner ; held that the petitioner should be disqualified from contesting these elections as according to his reading the petitioner suffered from the disabilities enumerated in section 37 (2) (g) of the Sind Local Government Ordinance as amended.
2. We have already considered the competency of such orders passed in other cases and have quashed similar orders on the ground that these orders produced in a mechanical manner without bestowing due attention and a judicial approach to the points involved and without affording an opportunity to the candidate and relying on source reports have no sanction in law and cannot be supported. This petition could A also be allowed on the same reasoning because the order in this petition also suffers from the same effect. But additionally another equally important point calling for our interference in this particular case is a new angle of approach brought about by the appellate authority namely disqualifying the petitioner from taking part in elections on the ground that he had withdrawn from the contest in November, 1983 elections and this was allegedly in response to an appeal from the M. R. D. It is this aspect which needs clarification. The relevant portion of the order on this part of the case is as follows : "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 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, D. C. 25 or any other Local Council, shall stand cancelled."
To disqualify a person in terms of section 37 (2) (g) it is necessary to record a clean finding in unambiguous terms that the candidature suffers from any of the following disabilities namely : "He is opposed to the Ideology of Pakistan.
Or ' Is or has been or is known to be or is a member of group of person involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan.
None of such attributes have been assigned to the conduct of the petitioner. As a matter of fact all these disqualifications are allocated to the P. P. P. And M. R. D., the former of which is a political party and the latter is a political organization consisting of all large number of political parties who have joined together and assumed a name M. R. D. Which means Movement for Restoration of Democracy. The respondent No, I has first undertaken to associate the petitioner with these two political parties and then taken it for granted that his association with these two Political parties means that he is opposed to the Ideology of Pakistan or is a member of a group of persons involved in activities prejudicial to the interest, security, integrity and solidarity of Pakistan. As if the P. P. P. And the M. R. D. To whom the association is traced are groups involved in such activities. It is doubtful whether the framers of this provision of law shared this view of the respondent No, 1 and it is highly debatable that the M. R. D. And all its components are involved in such activities. Unless and till such time that a clear judicial opinion about the role of these parties is obtained from the Supreme Court under the Political Parties Act (Act Ill of 1962 as amended) or they are first determined to be "a group of persons involved in activities prejudicial to the interest, security, integrity or solidarity of Pakistan" within the meaning of section 37 (2) (g) of the Sind Local.
Government Ordinance, 1979, an adherent of these parties cannot be subjected to the disqualifications enumerated in clause (g) of section 37 (2). This is exactly what the respondent No, 2 ha chosen to do. There is a Political Parties Act under which the role played by each political party can be scrutinized and determined. Unless this has been done the view that petitioner should suffer these disqualifications on account of his associations with these political parties is unthinkable. For this additional ground also this petition must be allowed and the order disqualifying the petitioner from contesting election should b quashed.
3. The result is that the petition is allowed and the impugned order is declared as being without lawful authority and of no legal effect. The parties shall bear their own costs.
ALLY MADAD SHAH, J-The petitioner has sought following reliefs :
(a) declared that the impugned order passed by the respondent No, 3, dated 11 th January, 1984 is without lawful authority and of no legal effect.
(b) to direct the respondents Nos. 2 to 4 to announce the date of elections/by election of Unit No, U.
C. 25 or any other Local Council Election and to allow the petitioner to participate in the said election.
(c) to grant such other relief as is deemed fit and proper in the circumstances of the case.
(d) Award costs of the petition.
' The operative part of the impugned order, dated 11th January, 1984 passed by the respondent No, 3 is contained in paragraphs 4 and 5 thereof, which are reproduced herein below : "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 election 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, 1 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, D.C-.25 or any other Local Council, shall stand cancelled."
' It is evident that the petitioner has been disqualified from contesting Local Bodies Election on the grounds of his association with one of the political parties and his withdrawing his candidature to the Local Bodies election held in November, 1983. Order of his disqualification has been made under the provisions of section 37 (2) (g) of the Sind Local Government Ordinance, 1979, which reads as under :- "(2) A person shall be disqualified from being elected as and from being a member if-
(a) to (f)
(g) he is opposed to the ideology of Pakistan 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 to the interest, security, integrity or solidarity of Pakistan" shall Include instigation to any section of people with a view to creating lawlessness and disorder : It would appear that the facts reflected in the impugned order do not place the petitioner within the compass of the disqualification outlined in section 37 (2) (g) reproduced above. Mere allegations of being associated with political party or having respondent to the call of a political movement to boycott local bodies election do not constitute the documents of aforesaid disqualification. Accordingly, the impugned order is construed to be without lawful authority and of no legal effect.
' As regards the prayer at clause (b), it is the function of the respondent No, 4 to hold the election.
The election could not be held as both the candidates namely, the petitioner and the respondent No, 1, stood disqualified. Fresh programme does not seem to have been issued probably because of the filing of constitutional petitions.
' Prayers at clauses (c) & (d) are of consequential nature.
For the aforesaid reasons, I do concur to the allowing of petition only to the extent of prayer at clause (a) that the impugned order has E been passed without lawful authority and it is of no legal effect. I would leave the parties to bear their own costs.