1. SHAFIUR RAHMAN, J.-- The petitioner, who was defeated by respondent No.1 in an election to Lahore Municipal Corporation from Unit 71, Ward 27 seeks leave to appeal against the judgment of the Lahore High Court dated 12-7-1984 whereby a constitutional petition filed by respondent No.1 against the decision of the election tribunal dated 28-3-1984 was allowed and he was restored to the elected office.
2. The election to the Lahore Municipal Corporation from Unit No. 71, Ward 27 was contested by the petitioner and respondents 1 to 6. When the nomination paper of respondent No.1 came up for scrutiny before Returning Officer he passed the following order while rejecting it-- "Objected by Ch. Abdul Karim and Muhammad Akram candidates that Haji Muhammad Tariq is a member of AI-Zulfiqar, a terrorist group in Pakistan. Further stated that he was convicted by SMC and also awarded lashes. This fact is also admitted by the candidate himself. A person having such a record cannot be considered to (be) reasonable personality, hence rejected."
3. The appellate authority held this order to be untenable and restored his nomination paper.
4. In the contest that followed respondent No.1 secured the highest votes (1056) followed by petitioner (817). Respondent No.1 was declared elected. The petitioner filed an election petition alleging following disqualifications against him:-
(i) "The respondent No.1 is a known office-bearer, worker and activist of the defunct Pakistan Peoples Party.
(ii) On a number of occasions he has been arrested and detained for his anti-State and subversive activities.
5. (i.e) That there were inadequate polling arrangement; large proportion of voters were deprived of their right to record their vote."
6. The Election Tribunal after framing issues and recording evidence held as follows: -
(i) "The Government having refused permission to respondent No.1 to contest the election, no authority could allow him to be a candidate at the election.
(ii) The conviction and sentence awarded to respondent No.1 shows that he had indulged in subversive activities.
7. (i.e) The petitioner has failed to prove that any of the voters was deprived of his right to cast vote or that the polling arrangements in the unit concerned were insufficient.
8. The election of respondent No.1 was declared to be void and the petitioner was declared to be duly elected candidate.
9. The constitutional. Petition filed by the respondent No.1 was allowed by the High Court by the impugned order and the respondent No.1 was restored to the elected office.
10. The learned counsel for the petitioner Mr. Munir A. Shaikh has pressed to disqualifications against respondent No.1. The first one is provided in section 21, clause (h) of the Punjab Local Government Ordinance, 197.9 (hereinafter referred to as the Ordinance) and the other disqualification is contained in section 21, clause (i) of the Ordinance. According to him, the very fact that the respondent No.1 made an application to the Governor for being relieved of the disqualifica--tion under section 21, clause (h) and the refusal of the Governor to do so would be sufficient to prove such a disqualification against him. As regards the other disqualification it is contended that the conviction of the respondent No. l by a Summary Military Court for leading a procession and shouting slogans was sufficient.
11. So far as the disqualification under clause (h) was concerned, it could be attracted only if it was established that the respondent No.1 has: "at any the on or after 20-12--1971 been a member of any Executive Committee by whatever name called or an office-bearer of a political party at local, district, divisional, provincial or national level."
12. It had to be proved by an affirmative evidence not only that the respondent No.1 was a member of the political party like the Pakistan Peoples' Party but also that he held a post on the Executive Committee at any of the tiers mentioned in the disqualification clause. The evidence led with regard to the application made by the petitioner to the Governor shows that he all the the represented himself to be the office-bearer of a welfare society and not of a political party and he sought exemption at a stage when the Returning Officer had rejected his nomination paper on the ground of his being an office-bearer and he sought intervention of the Governor to be relieved of the supposed disqualifi--cation. There was neither an express admission nor could it be implied that he was an office-bearer of the description provided in clause (h). Except for the statement of the petitioner during proceedings before the Election Tribunal, there was nothing else to bear it out.
13. The Election Tribunal has not specifically held the respondent No.1 to be disqualified under clause
(h) but has proceeded to hold that after the refusal of the Governor no authority could permit him to contest the election. The refusal of the Governor did not by itself create a disqualifi--cation but was dependent on a disqualification already incurred. The High Court, therefore, was correct in observing that the finding of the Election Tribunal was conjectural and based on surmises.
14. As regards the second disqualification though the allegation in the election petition was that the respondent No. l had been on a number of occasions arrested and detained for his anti-State and subversive activities the only evidence led was of his conviction by a Summary Military Court more than three years before the election. The F.I.R. Was put in evidence to prove the nature of the allegations against him. The judgment of the Summary Military Court or the charge levelled against him were not put in evidence. The conviction by itself could be of relevance if it had taken place within three years of the, election. However, as it did not, affirmative evidence had to be brought to demonstrate that the respondent No .l was engaged in activities directly or indirectly prejudicial to the interest, security, integrity or solidarity' of Pakistan. Infraction of Martial Law Regulation and conviction therefore could not by itself lead to any such conclusion unless evidence was given of the exact nature of allegations levelled and proved against the respondent.
15. The proof furnished by the petitioner was deficient by all' standards to disqualify a duly elected candidate.
16. We find no merit in the petition and leave to appeal is refused.