Through this Constitutional petition the petitioner has challenged the orders of the Returning Officer dated 5-5-2001 vide which his nomination papers were rejected solely on the grounds that a case of misappropriation of Rs.66,000 stood registered against him vide F.I.R No.27, dated 25-7-1994 under section 5(2) of Prevention of Corruption Act, 1947 and under section 409 Police Station Anti-Corruption, Sahiwal as also the order of the District Returning Officer dated 10-5-2001 vide which he dismissed petitioners appeal although not on the grounds which found favour with the Returning Officer but on a new grounds i.e. "the ground raised for involvement of the appellant in the activities which are clearly against Islam, photographs and the affidavits which they have submitted alongwith the video cassette. It is shown that he is dancing and playing with the dance lady on many occasions. The ground for having good reputation is mandatory and it can be raised at any stage".
2. Learned counsel for the petitioners has challenged the impugned orders on following grounds:--
(i) That the ground which found favour with the District Returning Officer to dismiss petitioners' appeal was not available to him as the same was not agitated before the Returning Officer and the order of the District Returning Officer is violative of mandatory provisions of sections 69 and 610 of the Punjab Local Government Ordinance, 2000. In support of the submission made learned counsel relied on and 1998 M LD 1054;
(ii) That mere registration of a case is not finding of guilt against the petitioner. In support of this submission learned counsel relied on 1984 SCM R 1172, 1988 MLD 1948, 1988 CLC 109, 1991 CLC 57 and PLD 1976 SC 57; and
(iii) That petitioner could not have been disqualified on the basis of video cassette, the authenticity of which was never established in terms of the procedure laid in Article 78 of the Qanun-e- Shahadat Order.
3. Learned counsel for the respondent, on the other hand, defended the impugned orders by submitting that a bare reading of section 14(d) would indicate that the law-maker wanted clean and people having good moral character to enter the institution of public representation. He said that it is mandated in law for a candidate to have good moral character, he should not violate any Islamic Tenet, he should have adequate knowledge of Islam and that he should refrain from major sins. Defending the procedure adopted by District Returning Officer learned counsel submitted that the video cassette was sent to the Bar Room with the consent of the parties with a view to enable the lawyers to see the cassette and that seven Lawyers tendered affidavits to the effect that petitioner was seen in the video cassette dancing with a dancing girl and making overtures which reflected scant regard for good morals. According to the learned counsel the procedure adopted was sufficient compliance to the requirement "summary inquiry" which is contemplated in law. In support of the submissions made learned counsel relied on following judgments. 1988 M LD 1751, 1997 M LD p.612, 1995 CLC 158, 1925 All England Law Reports 1009, 1965 All England Law Reports p.464, 1974 All England Law Reports p.465 and 1972 All England Law Reports p.699.
4. Lastly it is contended that respondent No.3 has been declared unopposed on 11-5-2001.
5. Heard.
6. Learned counsel for the respondent right at the outset conceded that so far as the argument of petitioner's learned counsel that an F.I.R. Is not a conclusive proof of guilt is concerned the same is unexceptional and, therefore, he would not join issue with him on this point. That being so, the questions which call for determination before this Court are the procedure adopted by the District Returning Officer, the evidentiary value of the video cassette and whether a point which was not agitated before the Returning Officer could be a ground, on the basis of which, petitioner's nomination papers could be rejected by the District Returning Officer.
For a better appreciation of the issues raised a reference to Rule 16 of the Punjab Local Government Election Rules, 2000 would be relevant. The relevant part of which is Rule 16(9) and (10) which reads as under:-- "(9) The Returning Officer shall cause to be affixed at some conspicuous place in his office a notice in Form IV of every nomination paper received by him containing the particulars of each candidate and the name of the proposer and seconder as shown in the nomination paper for general information and inviting objections or suggestions from the voters of the local area within such time as may be specified in the Election Programme; and
(10) The objections or suggestions, if any, received under sub-rule (9) shall be taken into consideration at the time of scrutiny of nomination papers; Rule 18(3)(iii) is relatable to scrutiny and the right of appeal. It mandates as follows:-- "any provision of rule 16 or rule 17 has not been complied with;"
9. A bare reading of the afore-referred provisions would make it clear I that the Returning Officer and in appeal the District Returning Officer has to consider the objections which are received under Rule 16(9) and admittedly the objection with regard to the petitioner having not a good moral character B on account of his dancing with a girl was not raised before the Returning Officer. This ground, therefore, could not be a ground, on the basis of which, the District Returning Officer could have rejected the nomination papers of the petitioner. This view is in line with the law laid down by the august Supreme Court as also by the Karachi High Court, to which, reference has been made by petitioner's learned counsel. In 1994 CLC page 1566 wherein at page 1568 it was held as under:-- "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 details 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. Theses 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. "
10. Even the procedure adopted by the District Returning Officer is not in accord with the mandate of law inasmuch as the inquiry which is contemplated under Rule 16 of the Punjab Local Government Election Rules, 2000 is a summary inquiry which does not envisage recording of evidence in detail. Admittedly the District Returning Officer neither saw the video cassette himself nor commented upon its authenticity i.e. The date of its having been recorded, the identity of the person who recorded the video as also even the identity of the petitioner. He merely relied on seven affidavits of Advocates and there is nothing on record to indicate that petitioner was provided any opportunity even to cross-examine. In any case those affidavits have been sought to be countered through 28 affidavits before this Court of persons of the locality. We have also considered the precedent case-law from foreign jurisdiction photo copies of which have been placed on record by learned counsel for the respondents in 1972 All English Law Reports 699 what weighed with Justice Shah was the consideration of the fact that the authenticity of the tape-recording stood proved in the summary inquiry and the Judge who delivered the judgment not only examined the witnesses- in support of the video-cassette but those witnesses were even allowed to be cross-examined by the respondents-defendants. The relevant observation of the Court is at page 701 of the said judgment which reads as under "Accordingly I heard a mass of evidence beginning with a number of witnesses who in support of the originality of the tapes, gave evidence of their history from the actual process of recording up to the time of their production in Court. The testimony of those witnesses was unshaken, so it appeared to me, and undiminished by cross-examination. In deed, as it eventually appeared, there was no evidence to refute their account of how the tapes first came into existence and how they had since been in safe and secure custody without opportunity for fabrication or tampering of any kind. At the conclusion of that evidence there was a strong prima facie case for the authenticity of the recordings. As I have already ventured to suggest, that was, as I see it, the apt and proper stage at which to rule on the fundamental question of admissibility. If I had then been called upon to make a decision on the evidence adduced by the Crown I would have had no hesitation in overruling the objections, whether as a matter of strict law or as a matter of discretion. However, the matter proceeded and I listened to the evidence of four experts whose examination of the tapes had led them to forms views adverse to their originality and indeed their authenticity. They were, of course, called on behalf of the defence."
11. The procedure adopted by the District Returning Officer was neither in accord with the Special Law, under which, he was dealing with the matter but is repugnant to the mandatory provisions of the Evidence Act. In these circumstances we are of the considered view that the order, dated (a 10- 5-2001 of the District Returning Officer cannot be sustained. The same is, therefore, set aside.
Petitioner's nomination papers stand accepted and he shall be allowed to contest the election and shall be issued the election symbol accordingly.
12. So far as the question that notification has been issued declaring respondent No.3 as unopposed is concerned the same has not been produced before this Court even if there is an order/notification to that effect the same, would incur the consequence of this order and is hereby set aside. Needless to observe that any observation made in this order shall not effect the merits of the election petition if the same is filed at appropriate stage.