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AJK Interim Constitution Act, 1974

  1. S. 2 — The term “Judge of High Court” includes an Additional Judge Additional Judge will hold office for the period for which a Judge is absent or unable to perform his function-it therefore follows that an Additional Judge would also be appointed on the advice of AJK Council and after due consultation with the Chief Justice. G. Mustafa Moughal v. AJK Govt. 1993 SCR 131 (C)
  2. S. 2 — “State Subject” — Definition — State Subjects who reside in Pakistan also continue to be State Subjects. President’s Reference No. 1 of 1996 1997 SCR 108 (A)
  3. Section 2 — Notification No. I-L/84 dated 27th April, 1927 — interpretation clause — its scope — term State Subject — definition — term State Subject used in Section 2 of the Act, 74 refers to the definition used in Notification dated 27th April, 1927 — (According to celebrated principle of law, interpretation clause in a Statute or Act providing definitions of the terms used in the Statute is always incorporated with the purpose for prescribing scope and limits of such terms).  Held: the term State Subject wherever is used in the Act, 1974, will be capable of the meanings assigned to it in the interpretation clause unless expressly provided otherwise.  Further held: the Act, 1974 has adapted the definition assigned to the term State Subject used in the Notification dated 20th April, 1927 which has become part of the Constitution.  Haider Ali & another v. Qurat-ul-Ain Latif & 9 others 2014 SCR 196 (B,C&D) PLD 1964 SC 616, PLD 1976 (Karachi) 600 and NLR 1980 SCJ 135 ref.
  4. S. 2 and sub-section (2-A) of section 43 an Additional Judge of High Court can only be appointed after fulfilling the requirements of sub-section (2-A) namely if there is advice of the AJK Council and if the Chief Justice of AJK High Court has been duly consulted. Ghulam Mustafa Moughal v. AJK Government 1993 SCR 131 (B)
  5. — Section 2 (1) — Service of Azad Jammu & Kashmir — definition of — Industrial Development Bank Limited v. Sajid Hameed & others 2017 SCR 850 (A)
  6. — Article 2 (1) — Notification No. I-L/84 dated 20th April 1927— State Subject/citizenship … definition of — The Azad State of J&K and Indian Occupied J&K being two divided territories, still await resolution of dispute by the will of people, under the resolutions of UN Security Council — the right to hold and have state subject, equal to citizenship of any sovereign territory as provided under notification dated 20th April 1927, still has constitutional and legal backing under article 2 (1) of AJK Interim Constitution. Sajid Mehmood versus District Judge Mirpur & others 2023 SCR 607 (B)
  7. S. 2(2) — Expression “Act of the Assembly” includes an Ordinance — Tax can, thus, be levied by an Ordinance also. Novelty Enterprises Ltd.  v. Deputy Collector & 5 others 2001 SCR 191 (H) Syed Iqbal Hussain Shah v. Government of Azad Jammu and Kashmir PLD 1974 AJ&K 67 ref
  8. Sections 2 & 50 — Chief Election Commissioner — Appointment of — brief history — The AJK Legislative Assembly passed the Azad Jammu & Kashmir Interim Constitution Act, 1974 to provide for the better Govt. and administration of Azad Jammu & Kashmir — The appointment of Election Commissioner under the AJ&K Govt. Act, 1970, was validated — Initially in Act, 1974, it was provided that the Chief Election Commissioner shall be appointed by the President — later on in 1975 an amendment was introduced whereby the appointment of the Chief Election Commissioner was to be made on the advice of the Council — Section 50 provides that the terms and conditions of the Chief Election Commissioner may be prescribed — Section 2 defines the word “prescribed” as “prescribed by law or rules made thereunder”. Presidential reference v. 2015 SCR 1249 (F)
  9. Section 3 Islam the state religion — rights of the minorities–Gordwara — reserved for Sikh religion — contention that land reserved for ‘Gordwara’ a religious  purpose of ‘Sikhs’ cannot be utilized for any other purpose—according to the provision of section 3 of the Constitution Act, Islam is the State Religion, the most modern and progressive religion of the world having full regard and respect to the rights of the minorities including their right in the property and religious rights — Thus, it is duty of the State and the Government to take all the necessary steps to ensure the protection of religious rights of the minorities according to the injunctions of Islam — the matter  raised in this case  regarding the piece of land reserved for Sikh religion’s purpose requires administrative  and executive measures. The Government is directed to take necessary action in this regard and if it is proved that any piece of land was reserved and utilized for Gordwara, a religious sacred place of Sikhs, necessary measures should be taken for restoration of the same to its original condition as for as possible and also for its protection. Rehmatullah Khan & 3 others v. Azad Govt. & 13 others 2014 SCR 1385 (L)
  10. Section 3 — state religion — Islam — meaning of — disgrace of  other religions’ dignitaries and symbols — strict prohibition of — under the provisions of section 3 of AJ&K Interim Constitution Act, 1974 , Islam is the State religion which theoretically and practically is religion of peace. The term ‘Islam’ grammatically means peace, protection and security. Historically, it has been undoubtedly proved that Islam has provided complete code of life which practically maintains the unprecedented peace in the society, human dignitaries and inter-religion harmony among the state subjects. In Islam, the disgrace of other religions’ dignitaries and symbols or places is strictly prohibited. Azad Govt. & others v. Ghulam Nabi Shah 2015 SCR 816  (D)
  11. —Arts. 3 & 3-C—Islamic way of life—inheritance—claim of custom without proof—Constitution provides that Islam shall be the State religion—steps shall be taken to enable Muslim State subjects to order their lives in accordance with the fundamental principles and basic concepts of Islam—provide facilities to enable the subjects to understand the meanings of life according to the Holy Quran and Sunnah—Held: claiming the right on the basis of such custom which is clearly contradictory to the spirit of Quranic verses, by a Muslim, is above understanding and shameful—it will be disobedience and violation of Allah Almighty’s command if such claim is accepted. Abdul Rehman & 5  others V. Nazim & 14 others 2020 SCR 498 (C & D)  Surah Al Nisa verses No. 29 to 33 rel.
  12. Sections 3 & 31 (5) Islam is the state religion — no law shall be repugnant to the teachings and requirements of the Holy Quran — existing laws shall be brought in conformity with the Holy Qur’an & Sunnah — Held: the basic spirit, essence and scheme of the constitution Act has been derived from the sources of the Holy Qur’an & Sunnah of the Holy Prophet (P.B.U.H.). Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (C)
  13. Ss. 3, 31(5) & 42-A — Penal Code  (XLV of 1860), S. 338-G — Qisas and Diyat — Weak financial position of accused to pay qisas and diyat — Law of qisas and diyat as enforced in Pakistan, had been adapted by Azad Jammu and Kashmir and specially the Chapter XIV of Pakistan Penal Code, 1860 was in practice in Azad Jammu and Kashmir — Section 338-G, P.P.C. had been incorporated to authorize the Government to make such Rules as it could consider necessary for carrying out the purpose of said Chapter — Supreme Court, for doing complete justice in the case, in exercise of powers under S. 42-A of Azad Jammu and Kashmir Interim Constitution Act, 1974 directed the Government of Azad Jammu and Kashmir to suitably amend the provisions of S.338-G, P.P.C. in the manner as in force in Pakistan and under its rule making powers conferred by S.338-G, P.P.C., the Government would make, Diyat, Arash and Daman Funds Rules, like the rules as in force in Pakistan called ‘‘Diyat, Arash and Daman Funds Rules, 2007’’. Muhammad Hanif  v. State 2012 SCR 146 (B) PLD 2007 SC 315 and PLJ 2008 Federal Statute 138 rel.
  14. Sections 3, 4 & 31 (5) — having overriding effect relating to legislature and interpretation of law — according to the spirit of the constitution Act, there can be no law which takes away abridges or is inconsistent with the constitutionally guaranteed fundamental rights or is made in contravention of the provisions of the constitution — Same like Islam is the state religion — no law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah — under constitutional provisions all existing laws shall be brought in conformity with Holy Qur’an and Sunnah. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (B)
  15. —Art. 4(4)—fundamental rights—equality before law–writ—claim of project allowance—-entitlement of—claim of appellants is at par with the appellants who were granted project allowance by the Supreme Court—thus they also entitled for the allowance. Tariq Mehmood Mirza & 9 others v. Azad Govt. & 6 others 2020 SCR 538 (A & C) 2019 SCR 697 rel.
  16. —Section 4(4) —Fundamental Rights—protection of— Section 4(4) of the Act, guarantees certain rights to the State subject and also provides protection that no law shall be made which takes away or abridges the right so conferred and any law made in contravention of this subsection shall, to the extent of such contravention be void— Right of security of a person; in my estimation, is not restricted to animal or vegetative life but it includes the right to life, right of access to justice, and right to have rule of law. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (W)  PLD 2010 SC 61 & PLD 1997 Lah. 666 ref.    
  17. —S. 4  (4)  (7)  —AJ&K  Employees  Service  Associations (Registration and Regulation Act, 2016—preamble— right to form association—but subject to thereasonable restrictions imposed by law in the interest of morality or public order—The concept of forming an association or union has not been taken away— rather the activities of the associations/ unions formed by the employees of the Government have been regulated. Imran Khurshid vs Azad Govt. & others 2018 SCR 282 (A)
  18. — Article 4 (4) & 44 — fundamental rights — protection of — educational institutions — writ — High Court directed that a ban on admission of the children of ministers, secretaries and the teachers, to private educational institution, be imposed — Supreme Court held that the observation made by High Court is superfluous — no doubt the existing situation of education system in AJ&K can rightfully be regarded as an ‘open secret’ but coercively mandating or compelling any individual to admit one’s child to a specific institution stands in direct violation of fundamental rights — such an imposition inherently transgresses the cherished principles enshrined within the very fabric of legal framework and socio political ethos — to infringe the liberties, freedoms and choices of parents to determine or decide anything for their child is a straight violation of fundamental human and parental rights — it becomes imperative to emphasize on the vital significance of upholding and safeguarding the rights and liberties of individuals, which encompass the right to determine the educational trajectory of their children without unwarranted interference or undue encumbrances imposed by external entities. AJK BISE & 2 others versus Leading Book Publishers & 33 others 2023 SCR 974 C & D
  19. —Article. 4(9)—Freedom of speech and expression—right is subject to limitation and restrictions and not unfettered—plea of freedom of speech and expression cannot be raised to rationalize Contempt of Court— Held: No doubt Fundamental Right No.9 guarantees the freedom of speech and expression but the same is subject to the limits and restrictions imposed by the Constitution itself. Even any law made by the Legislature, which is the supreme body of the state, in contravention of the prescribed constitutional limits shall be deemed void. Hence, it can be easily inferred that if even the Legislature cannot violate the limits of Article 4 how any other Art. 24(2) (f) — AJK Legislative Assembly (Elections) Ordinance, 1970… section 5(1)(f) and 5(2)(x)—disqualification of member Legislative Assembly—review—argument that under Constitutional provisions, a member can only be disqualified if he is convicted and sentenced to imprisonment for a term not less than two years—Held: under Art.24(2)(f), a person shall be disqualified from being so elected if he is otherwise disqualified from being a member of the Assembly by the Constitution or by or under any other law—under section 5(1)(f) of Ordinance 1970, a person shall be disqualified to be elected as and to be a member if he is sagacious, righteous, honest, ameen and not profligate—under section 5(2)(x) of Ordinance, 1970, a person shall be disqualified from being elected or chosen and for being a member, if he is found guilty of corrupt or illegal practice under any other law for the time being in force—after declaring a person guilty of an illegal act/practice, the Court can pass an order for disqualification from being elected or chosen and from being a member, thus if it cannot be said that the order passed by the Court is not covered by any law. Chaudhary Muhammad  Saeed V. Haji Javed Akram 2020 SCR 617 (B)
  20. —Article. 4(9)—Freedom of speech and expression—right is subject to limitation and restrictions and not unfettered—plea of freedom of speech and expression cannot be raised to rationalize Contempt of Court— Held: No doubt Fundamental Right No.9 guarantees the freedom of speech and expression but the same is subject to the limits and restrictions imposed by the Constitution itself. Even any law made by the Legislature, which is the supreme body of the state, in contravention of the prescribed constitutional limits shall be deemed void. Hence, it can be easily inferred that if even the Legislature cannot violate the limits of Article 4 how any other body or person can act or derive power to offend the provisions of Article 4 of the Constitution. In this state of affairs, mere non-existence of any express rule for not entertaining any petition violative to the constitutional provisions, does not authorize any person to entertain the same. Robkar-e-Adalat v. Liaqat Ali Mir 2020 SCR 676 (B) AIR 1996 SC 2481, 1990 PcrLJ 587, 1991 MLD 914, 1982 SCMR 713, PLD 1989 Lah. 376, PLD 1972 SC 115, PLD 1976 Lah. 355, AIR 2003 SC 1467, rel.
  21. —fundamental rights—Article  4(13) &  (14)       —right to —Preamble—Article 2—Constitution of Islamic Republic of Pakistan, 1973—AJ&K Council transfer of Fugitive Offenders Act, 1984—territories and status of AJ&K— Under referred articles, the AJ&K means the territories liberated by the people and for the time being under the control of Govt. of AJ&K. The territories of the AJ&K under the constitutional provision can be extended on coming into its administration some other territories— In future if the people of State of J&K decide to accede to Pakistan, the territory of Pakistan can be extended but at present held: the AJ&K is a separate territory and not included in the territory of Pakistan. Yasir Bashir v. Saba Yasir & others 2019 SCR 1 (B) PLD 1985 SC (AJK) 62 rel. Opinion expressed in PLD 2006 High Court (AJK) 1 held incorrect.
  22. —Art. 4—Fundamental Right No. 15—the discrimination is prohibited under the Constitution; therefore, the respondent is entitled to the same treatment as met by the other whose case was at par with the case of respondent. Inspector General of Police & 2 others v. Syed Shehzad Ali Shah & others 2020 SCR 510 (B)
  23. —Art. 4—fundamental Rights—Right No.15 all the state subjects are equal before law and entitled to equal protection of law—Art. 4 clearly reveals that even a law or custom or usage having the force of law, inconsistent with thefundamental rights, shall be void to such inconsistency and no law can be made which takes away or abridges such constitutionally guaranteed fundamental right. Even the law based on discrimination enacted by Legislative Assembly has been struck down by the Court. Qurat-ul-Ain vs UMSIT Kotli & others 2018 SCR 994 (A) 1994 SCR 341 ref.
  24. S. 4, Fundamental Rights Nos. 8 & 15 — Contention that the notification dated 8.10.1998 was violative of fundamental rights Nos. 8 & 15 guaranteed by virtue of section 4 of the AJK Interim Constitution Act, 1974, has no substance for the simple reason that in the first pleas the appellants did not apply of pre-qualification and even otherwise, the regulations of the profession of contractors by calling upon them to satisfy the particular conditions for pre-qualification cannot be regarded an unreasonable restriction to practice their profession as is evident from the provisions of the fundamental right No.8. Farooq Ahmad Khan v. Azad Govt. & 3 others 2002 SCR 14 (B)
  25. S.4 — Fundamental Rights — Rights No. 15 — Equality before law — All state subjects are equal before law and are entitled to equal protection of law. Imran Ali v. Public Service Commission, AJK through its Secretary, Civil Secretariat, Chatter, Muzaffarabad 2013 SCR 795  (A)
  26. Section 4 — fundamental rights — right to reputation — inalienable right — according to the contents of Article 4 reputation is also an inalienable right of a citizen which is recognized by the constitution as well as the injunction of Islam. In this regard, reference may be made to a case Habib Bank &others v. Shahid Ashraf & others 2015 SCR 1412 (F) 
  27. Section 4 —fundamental rights — right to reputation — award of punishment — enforcement of contractual obligations — monetary relief adequate for non-performance — it has been observed in this case that it is not  a mere case of enforcement of contract or contractual obligations, whether they are specifically enforceable or not, or whether non-performance of which compensation in money is an adequate relief, whether as discussed hereinabove that it is a matter of awarding of punishment and taking away the reputation and property of the person , which act, under the constitutional provisions  is prohibited  as specifically mentioned in article 4 of the constitution of the Islamic Republic of Pakistan and fundamental right No. 3 of the Azad Jammu and Kashmir Interim Constitution Act 1974. Habib Bank v. Shahid Ashraf & others 2015 SCR 1412 (H) 
  28. S. 4(1) — postulates that any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this section, shall to the extent of such inconsistency, be void. Syed Mumtaz H. Naqvi v. Raja M. Farooq Haider Khan & 4 others 2014 SCR 43 (E)
  29. S. 4(1) & (2) — any law which is inconsistent with the rights guaranteed by Constitution in S. 4(4) to the extent of such inconsistency is void—the legislature shall not make any law which takes away or abridges the rights so conferred by this section.  Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (F)   
  30. Section 4 (1) & (2) — fundamental rights — The Scheme and spirit of the Constitution Act and all laws is to protect, advance and safeguard the constitutionally guaranteed fundamental rights — any law the application of which results into abridging and taking away such rights, is null and void even before its inception. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (F)
  31. Section 4 (1) & (2) — fundamental rights — Held: any law which is inconsistent with the constitutional provisions of subsection 1 and 2 of section 4 of the Constitution Act or takes away or abridges the fundamental rights is of no legal effect. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR  1258 (H)   
  32. Section 4 (1) & (2) — any law which takes away or abridges the fundamental rights is void — the term “ takes away” is very much clear in conveying the total deprivation of right or things — the word “ abridge” includes even curtailment or partial deprivation of rights or things. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (N)
  33. S. 4(2) — Whether accrued rights can be withdrawn through legislation by legislative bodies with retrospective effect and if these rights have been decided admissible by Court, whether judgments can be nullified by Legislature by exercising its ppowers of legislation through retrospective effect — Admittedly the Legislature is only competent organ of State to enact any law but this power has to be exercised keeping in view the limitation provided by the Constitution. Abdul Rasheed and 85 others v. Board of Trustees and 3 others 2008 SCR 417 (D)
  34. S. 4(2) — The words and expressions “the rights so conferred refer to section 4(1) postulates that any law or any custom or usage having the force of law, or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this section shall, to the extent of such inconsistency, be void — Combined reading of section 4(1) and 4(2) clearly postulates that existing law at the time of enforcement of the Constitution and laws enacted after enforcement of the Constitution and laws enacted after enforcement of the Constitution shall be void if they are inconsistent with fundamental rights. Abdul Rasheed and 85 others v. Board of Trustees and 3 others 2008 SCR 417 (E)
  35. S. 4(2) — the Constitution is a sacrosanct document which establishes various institutions, apparatus of the Govt., defines the relationship between the individuals and the State and the rights guaranteed to the citizens/State subjects — it is duty of the Courts to interpret the Constitution and implement its provisions if any law is enacted against the provisions of sections 4(2) of Constitution Act, it is a void law and cannot co-exist in presence of section 4(2) of the Act. Syed Mumtaz Hussain Naqvi & 9 others v. Raja M. Farooq Haider Khan & 4 others 2014 SCR 43 (I)
  36. S. 4(4) — Fundamental rights No.13 & 14 — No state subject shall be deprived of him/her property without paying him/her compensation — If the respondents remained silent for sometime that shall not be a sufficient ground to deprive them of the compensation of their property — Under law only through acquisition proceedings the ownership rights could be acquired by the Govt. Appellants have not shown any written consent of the respondents that they will not claim any compensation — Held: The High Court rightly concluded that respondents have been deprived of their property without the payment of compensation and directed the Collector Land Acquisition Bagh to finalize the proceedings of award as started by him by issuing notification u/s 4 of the land Acquisition Act — The appellants were rightly directed to make payment accordingly. Azad Govt. & 2 others v. Muhammad Arif Khan and 2 others 2003 SCR 456 (A)
  37. Section 4 (4) — fundamental rights — Section 4 (4) enumerated rights No 1 to 18 in brief which are “security of person, safeguard as to arrest and detention, slavery and forced labour prohibited, Protection against retrospective punishment, freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession, freedom of speech, freedom of religion, safeguard against taxation of any particular religion, safeguard as to educational institutions in respect of religion ect.,  provision as to property, protection of property, equality of state subjects, non-discrimination in respect of access to public places, safeguard against discrimination in services and abolition  of untouchability.” — none of these is of such a nature regarding which judiciary is not concerned — without judiciary no one can think that these rights can be enjoyed or protected. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (I)
  38. Section 4(4) (1) — Life and liberty are universally recognized fundamental rights of a person — The word “life” is very significant as it covers all facts of human existence — It includes all such amenities and facilities to which a person is entitled to enjoy with dignity under law and Constitution of the State — It includes an access to and the facility of road — Providing the facility of roads to the state subjects is the fundamental duty of the State/Government. Azad Govt. & 5 others v. Inhabitant of village Baghar 2016 SCR 696 (B) PLD 1994 SC 693 rel. 
  39. Fundamental Right No.7 — State subjects have the right to form political parties — Join a political party of his own choice — There is no law in force in AJ&K that a political party in AJK cannot be affiliated with a political party in Pakistan or a political party of Pakistan cannot set up a branch in AJ&K — High Court can issue a direction or declaration if it is shown that a law has been violatived. M. Sayyab Khalid v. Mohtarama Benazir Bhutto and 39 others 1999 SCR 396 (B)
  40. Fundamental Rights No.8 & 14 — Provide that the freedom of trade, business of profession and the protection of property is allowed save in accordance with law. Azad Govt. and 8 others v. Mumtaz Ahmed Qureshi 2002 SCR 113 (C)
  41. Fundamental Rights — State subject entitled to equal treatment — appellants are implementing notification according to their own choice in a discriminatory manner, whereas, Held: exercise of powers in such manner is not permissible under the provisions of AJ&K Constitution Act, 1974, especially, keeping in view the guaranteed fundamental rights of the State subjects. Minister Forest & 3 others v. Aurangzeb and 12 others 2014 SCR 848 (A)   
  42. S. 4(14) — No person can be deprived of his property save in accordance with law — The Government is the creation of the Constitution — In light of oath administered to the President/Prime Minister and the Cabinet, which from the Govt., are duty bound to uphold the Constitution. Javed Iqbal and 5 others v. Social Welfare Deptt. and 5 others 2004 SCR 435 (F)
  43. —Art.4(4) and 44 — Right No. 14 — writ — payment of compensation—laches—enforcement of fundamental rights guaranteed by Constitution is paramount duty of the Courts being the custodian of Constitution—non-payment of compensation to land owners is a continuing wrong— merely applying doctrine of laches, a landowner, cannot be deprived of compensation, especially when the land is being used for public purpose without getting their prior consent. Zia-ud-Din Abdul  Hameed                v. Azad Govt. & others  2022 SCR 588 (C)
  44. —Article 4(14)—Protection of property—exclusive rights of owner to enjoy property except compulsory acquisition for public purpose—In case of acquisition by State, the owner of property must be compensated—violation of fundamental rights of citizen, on hands State, declared unfortunate—the Constitution provides for the right of a person to his/her property and gives the owner exclusive rights to enjoy his/her property and only exception for compulsory acquisition of that property is for public purpose but that too with a condition that such acquisition must be compensated. Depriving a citizen of his right to property is a sheer violation of Constitutional right of that person. The owner must be promptly compensated for the compulsorily acquired property. The Courts are the Custodian of the rights of the citizens and no person can be deprived of his fundamental rights.— the land of the respondents have been utilized by the Education department for the construction of a school building without paying them their rightful amount of compensation. It is very unfortunate to see such violations of the Constitutional rights of citizens that too, on the hands of the State. E&SE & 3 others vs Abdul Raheem Abbasi & 05 others 2024 SCR 401(B) Zia-ud-Din Abdul Hameed and others v. Azad Govt. & others, 2022 SCR 588; Azad Govt. vs. Raja Waleed Khan, 1993 SCR 307; Azad Govt. & others vs. Nizam Din and others, 2015 SCR 1077 rel.
  45. Fundamental Right No.15 — Equality before law — Argument that Right No.15 is not applicable entry into Govt. service and that only fundamental right applicable is right No.17 repelled having no force —  Held: Constitution has to be treated, in accordance with all pronouncements of Superior Courts, as one organic whole and must be harmoniously construed. Azad Government  v. Muhammad Youns Tahir & other 1994 SCR 341 (E)
  46. Fundamental Right No.15 — The guarantee of equality before law is more fundamental than all other fundamental rights — most of others rights would in some situations become meaningless without right No.15 — The first fundamental right guarantees that no person shall be deprived of liberty save in accordance with law — Can a ‘law’ contemplated by this right be discriminatory? The answer must be in negative. Azad Govt. v. M. Youns Tahir & other 1994 SCR 341 (G)
  47. Fundamental right No.15 — Clause (I) of Notification No. 1 declared to have been issued without lawful authority — Giving any weightage to a candidate for his past experience and departmental training violates the fundamental right of equality before law. This would create a distinct class as compared to the general public who have had no such experience or training. Relief given by the High Court modified and it was substituted by a declaration that clause (I) of Notification No.1 regarding experience and departmental training is declared to have been issued without lawful authority and of no legal effect. AJK Govt. v. Javed Iqbal Khawaja & another 1996 SCR 40 (I)
  48. Fundamental Right No.15 — The Constitution through right No. 15 holds out a firm and forthright guarantee that all State Subjects are equal before law and are entitled to equal protection of law — Its plain meanings are that laws of the State shall equally apply to all subjects and there would be no discriminatory treatment amongst them. These guarantees cover all laws dealing with State Subject whether they relate to life, honour, property, freedom, employment and all rights and liabilities — Therefore, reasonable classification was recognized. Azad Govt. v. Muhammad Youns Tahir & other 1994 SCR 341 (J)
  49. Going by the plain phraseology of Right No.15 every citizen must be allowed to have a driving license but a problem may be faced that it would mean that minors, blind persons and physically unfit citizens would also be entitled to obtain a driving license. If the law makes no distinction such a driver would put to risk the lives of citizens including his own. This law may be made to meet this situation and citizens falling in a well defined class   may be treated differently for grant of driving licenses. Such a law may be covered by the legislation rule. However, if it is provided in the statute that woman will not be allowed to drive any vehicle there might be a valid challenge that it violates the equality clause. Though the woman may be a class by themselves it may be said that the classification is not reasonable. Azad Govt. v. M. Youns Tahir  1994 SCR 341 (K)
  50. Fundamental Rights — Right No. 15 — which includes that all the State Subjects are equal before law and entitled to equal protection of law, appears to be a foundation upon which the whole structure of other fundamental rights is based — the Court in the judgment reported as “ AJK Govt. & others vs. Muhammad Yunus Tahir and others ( 1999 SCR 341) struck down the Act passed by legislative Assembly being inconsistent with constitutionally guaranteed fundamental right and observed that the right is more fundamental than all other fundamental rights. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (K) 1994 SCR 341  ref.
  51. Fundamental Rights — Rights No. 15 — In this fundamental right the terms used “equal before law” and “entitled to equal protection of law,” are very important — the judiciary is the sole organ of the state to protect the constitutionally guaranteed fundamental rights. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (L) PLD 2001 SC 607 rel.
  52. Fundamental Right No.15 — notification dated 23.10.2013 challenged on the ground that it is against the provisions of PMDC Ordinance and Regulations made thereunder on the ground that reservation of seats on self-finance basis is against the principle of equality before law — Right No.15 of Constitution guarantees equality of State Subjects and equal protection before law — The Courts have observed that classification is admissible if it is reasonable and based on intelligible differentia when has nexuses to the subject — The intention of Legislature is always that a class can be created for a particular group—all citizens can be treated alike in similar circumstances. Aroosa Nawaz & 7 others v. Azad Govt. & 61 others 2014 SCR 613 (A) 1994 SCR 341 and PLD 1993 SC 341 ref. Pakistan Medical & Dental Council (PMDC) Ordinance, 1962.
  53. Section 4(15) — Fundamental Rights — right of reputation — termination of contract service — allegation of serious misconduct — disqualification from further employment — the defendant-petitioners have punished the person declaring him of guilty of serious alleged misconduct which amounts to an offence. The question arises, whether, any company or any Master is authorised in constitutional state in this 21st century to punish a servant in such a manner and then take the shelter of law that such act is immune from judicial review and only remedy lies in shape of compensation, it is inalienable fundamental right of every citizen to enjoy the protection of law and to be treated in accordance with law. In particular, no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law, as is mentioned in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. The identical provision is right No. 15 guaranteed under section 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In Article 4, specifically, the term no action detrimental to reputation or property of any person shall be taken except in accordance with law, is mentioned. Thos constitutional guarantee provides protection to every citizen that his reputation and property should not be death with except in accordance with law. In view of this constitutionally guaranteed right, the concept of ‘Maser and Servant’ cannot be accepted or enforced in such a manner to allow the Master to away any punishment to his servant by depriving him of his reputation, property etc., and then claim that  his such act is immune from law and judicial review. Such a concept cannot be acceptable in civilized society or in this era of human rights, dignity and liberties. Habib Bank &others v. Shahid Ashraf & others 2015 SCR 1412 (B)
  54. Section 4(4) (15) — Fundamental rights — Equal protection before law — Section 4, guarantees the fundamental rights to the state subjects — Section 4(4) (15) provides that all state subjects are equal before law and are entitled to equal protection of law — Equal protection of law means that all persons equally placed to be treated alike both in privileges conferred and liability imposed—There is no concept of discrimination while providing facilities to the state subjects. Azad Govt. & 5 others v. Inhabitant of village Baghar 2016 SCR 696 (A) 1994 SCR 341 rel. 
  55. Fundamental Rights No.15 and 17 — Right No.15 guarantees that all State Subjects are equal before law and are entitled to equal protection of law. Right No.17 provides safeguard against discrimination in services. Azad Government v. M. Youns Tahir & other 1994 SCR 341 (B)
  56. Fundamental Right No. 17 — If this right is alone applicable then discrimination on the basis of place of birth, parentage and many other considerations would become valid — In that case, for instance Judicial Service in AJK will be reserved for sons of serving or retired Judges or that persons in police service shall only be recruited from a particular tehsil or only those who are recommended by M.L.As. shall be appointed to posts in Govt. service. — If we test these laws against the touch stone of right No.17 the said laws will have to be declared valid. However, if right No.15 is applied in all probabilities such laws will be declared invalid on the ground that they deny equality before law and equal protection of law and create a class which is not reasonable. Azad Government v. Muhammad Youns Tahir & other 1994 SCR 341 (H)
  57. S. 4(4)(4)-Contravention of the provisions of-Salt Act, 1974 which are punishable as an offence-are absolutely same which are incorporated in Salt Act, 1974-Held: The provisions are not violative of S. 4(4)(4) of the Constitution partly or in toto. Azad Govt. v. Kashmir Tobacco Industry Ltd 1992 SCR 20 (D)
  58. S. 4(4)(4)-Fundamental Rights- Right No. 4- applicable to-bar against these cases where the punishment is of penal nature only and not in cases of civil liability. Azad Govt. v. Kashmir Tobacco Industry Ltd 1992 SCR 20 (E,F)
  59. S.4(4)(7) — Forming of association is a fundamental right of a State Subject — Under this clause every State Subject, which includes even a civil servant subject to the conduct rules, has a right to form association or union — Forming of association or being a President of any such association which is not forbidden by the Government and is not derogatory to the rules particularly rule 28, cannot be said to be an association forbidden by law. Hussain Ahmad Islahi v. Azad Govt. & 2 others 2009 SCR 116 (C) 1977 PLC (CS) 860 rel.
  60. S.4(4)(7) — The association formed for social, religious and cultural purpose by the Government servant may be deemed as political association acting for political purposes under the garb of social, cultural and religious activities — Held:  that has to be clearly alleged and proved by the Authority alleging it to be a political association or a political activity. Hussain Ahmad Islahi  v. Azad Govt. & 2 others 2009 SCR 116 (D)
  61. —Art-4—Fundamental rights—Right No.7—the right to contest the Elections of Legislative Assembly is not a fundamental guaranteed right, rather it is a qualifying right—if any person fulfils the qualifications enumerated in the Constitution as well as the subordinate legislation, he has right to be elected as a member of Legislative Assembly—contesting elections to the legislative bodies is not a fundamental right—to impose a disqualification restricting right to contest the elections is not an infringement of a fundamental right. Mian Muhammad Shafique  Versus Azad Govt. & 12 others 2021 SCR 131 (F) PLD 1985 AJ&K 95 & 2001 SCR 380 ref.
  62. S. 4 (4) (2) (A)(I) — Only a person performing functions in connection with the affairs of Azad Jammu and Kashmir can be directed to refrain from doing an act which he is permitted by law to do or to do an act which is required by law to do — If no such right is shown to have vested in the petitioners-respondents and there is no corresponding legal duty cast on the appellants, no writ could be issued. Fedration of Pakistan v. Malik M. Miskeen & others 1995 SCR 43 (E)   PLD 1963 S.C. 203, PLD 1960 Dacca 382. PLD 1980 Pesh.113 and 1994 SCR. 243 referred and relied.
  63. Fundamental right No.14 — Compulsory acquisition of property or taking over its possession for public purposes — The demand of additional advance income tax was made in pursuance of statutes which have been validly adapted in the state — Held: No violation of Fundamental Right No.14. Commissioner Income Tax and another v. Asian D.Enterprises and 5 others 2000 SCR 47 (B)
  64. — Right No. 14 — no person shall be deprived of his property save in accordance with law— The property of a person can be acquired for public purpose under the authority of law. Azad Govt. & another v. Waheed Ahmed Khan & 10 others 2017 SCR 175 (F/1)
  65. Classification — If there is reasonable Classification among citizens Fundamental Right No.15 not violated — Classification is not the function of a Court of law — Classification of State Subjects, where necessary, is the function of the Legislature or executive — A Court of law exercising writ jurisdiction can only examine the question whether a law or any custom or usage having the force of law fulfil the  test of reasonable Classification — Power of judicial service under writ jurisdiction does not allow a Court of law to arrogate to itself a function which has to be performed by the Legislature or the executive. Rashid Ilyas v. Sadia Ahmad Dar & 13 others 2001 SCR 79 (B)
  66. S. 4(15) — All State Subjects are equal before law and are entitled to equal protection of law — Equality before law would mean that among equals the law should be equal and should be equally administered that like should be treated alike — There should be no discriminating among the equals. Azad Government & 2 others v. Syed Tayyab Gilani & 14 others 2009 SCR 415 (B)
  67. — Art. 4—Right No.15— all state subjects are equal before law and entitled to equal protection of law and discrimination cannot be made between those whose cases stand on equal footing. WAPDA Versus Sarwar Bibi & 12 others 2021 SCR 118 (A) 2010 SCR 271 & 2013 SCR  795 ref.
  68. — Art. 4 and right No.15 — Fundamental Rights and Equality of State Subjects — right No.15, provided under Art. 4 (4) of the Constitution safeguards equality among state subjects before law and ensures equal protect of law. The constitution explicitly mandates that no individual shall be subjected to discrimination on the basis of sex. Right No.15 (1)(2)(3) — ensures women enjoy the same rights and opportunities as their male counterparts, free from prejudice or bias. Furthermore, the principle of equal treatment extends beyond non-discrimination to affirmative action and special provisions aimed at rectifying historical justices and addressing gender-based disparities. Kanwal Shahzadi vs Muhammad Naeem & others 2024 SCR 348 (I,J &K) PLD 1990 SC 295 rel.
  69. — fundamental rights — right No.15 — equality before law — Death Assistance Package — Notification dated 31.03.2020 — constitutionality and legality of — Rules of Business, 1985 — AJ&K Civil Servants Act, 1976 — notification dated 31.03.2020 issued by the Finance Department provides for appointment of one child/widow of Govt. employees who die during service, against the posts falling in BPS-1 to BPS-15 without advertisement of post and thereafter regularization/affirmation of appointee on completion of 2 years’ period — observed that said notification had to be issued by S&GAD — Court held that in AJ&K the services are regularized by AJ&K Civil Servants Act and the Rules made thereunder — the spirit of law emphasizes for appointment on the basis of merit determined by the concerned selection authorities — the Constitution has guaranteed to right of equality before law and equal treatment of law, thus this right can only be enforced by following prescribed mode for appointment — law does not admit any such mode that any person, who has been appointed on temporary/contract basis, later on becomes entitled for permanent induction such induction in fact, amounts to violation of constitutionally guaranteed fundamental right of equality before law and the enforced law regulating the mode of appointment. Muhammad Safdar Mir vs Syed Adil Hussain Naqvi & others 2024 SCR 214 (B) 1994 SCR 341 rel
  70. — art. 4 — Fundamental Rights — Right No. 15 & 17 — appointment in Public and Government Service — purpose and essence of — the spirit of Constitution is equality, protection against all biases, discrimination etc. — the State requires a gigantic workforce to run affairs of State — for provision of standardized services to the masses, the appointment in public & Government service holds very crucial importance — the people have right to be served by best chosen Government and public sector employees — the right to be served by best chosen employees is based on the principle of ‘equality of opportunity’ — all individuals should have an equal opportunity to compete for positions even private sector jobs — it is constitutional and legal requisites that in public and Government service the vacancies shall be filled in strictly on merit while adhering to the prescribed mode and in transparent manner. Prof. Dr. Rehmat Ali Khan v. Dr. Syed Dilnawaz Ahmed Gardezi & others 2023 SCR 39 (F)
  71. — Art. 4 (4), — Fundamental Right No.15 and 17, —-t is clear from juxtaposed reading Right No.15 and 17 that there shall be no gender based discrimination — Held, this means that the constitution has given the state a remedial power to protect women and children and provide affirmative action notwithstanding the fact that everyone is to be treated equally under the law. Right No.17 provides that no citizen shall be discriminated against in respect of any appointment he is otherwise qualified for only on the ground of race, religion, caste, sex or place of birth — The safeguard ensures that the State will not commit gender-based discrimination. Kanwal Shahzadi vs Muhammad Naeem & others  2024 SCR 348 (L)
  72. Fundamental rights are provided under the United Nations Declaration of Human Rights, 1948 and are enshrined in almost all the Constitutions of the world — the Constitutional provisions guaranteeing the rights have to be liberally interpreted — the concept for providing the fundamental rights is that the executive has no power to interfere with the liberty of a person and fundamental rights guaranteed under the Constitution are paramount in comparison to subordinate laws — the legislature and executive have no power to take away these rights — S. 4(2) of the Constitution Act prohibits the State including legislature from making any law by which any fundamental right may be curtailed or taken away and if any law is made to this effect then to the extent of such contraventions, it shall be void.  Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (E)  PLD 1998 SC 388, PLD 1983 SC 457, PLD 2012 SC 870, PLD 2006 SC 697 and PLD 2010 SC 265 ref.   
  73. Equality — classes of State Subjects — question of equality is always among equals — Held: the Constitution itself admits the classes of the State Subjects, therefore, whenever the question of equality among State Subjects arises, it will be determined in the light of definition of the term ‘State Subject’ and on the principle of equality among equals.  Haider Ali & another v. Qurat-ul-Ain Latif & 9 others 2014 SCR 196 (D) PLD 1993 SC 341 ref.
  74. Fundamental rights — Favour shown to the petitioner — Papers of all the candidates should have been sent for re-checking — Paper of petitioner was sent for re-checking — Paper of petitioner was sent for re-checking without suggestion of the Departmental Selection Committee — Opinion obtained in favour of the petitioner was violative of equality clause contained in fundamental rights guaranteed by the Interim Constitution Act, 1974. Mushtaq Ahmed v. Agriculture Department & 7 others 2004 SCR 293 (A)
  75. Principle of parity with Punjab was being followed in Azad Jammu and Kashmir for the last so many years — After 2004 another notification was issued by Government whereby it was mentioned that this principle shall not be followed as a rule — Held: In this way a clear cut discrimination has been committed with the civil servants who were employed after 2004 while others who were employed before 2004 are availing same pay and privileges as are being enjoyed by their counterparts in Punjab — Held further: It is violation of Fundamental Right as enshrined in S. 4(15) of Interim Constitution Act — A policy of pick and choose has been adapted which cannot be allowed. Azad Govt. & others v. Syed Tayyab Gilani & 14 others 2009 SCR 415 (C)
  76. Fundamental right — It is fundamental right of a person to hold a property and no person can be deprived of his property against the law. Public Health Engineering Division & another v. Aurangzeb Khan 2008 SCR 590 (G)
  77. Fundamental rights — right to reputation — acts of all persons and authorities — reputation immune from — except under law — constitutional guarantee barred the acts of all persons and authorities taking  away the reputation of any person except in accordance with law. Habib Bank &others v. Shahid Ashraf & others 2015 SCR 1412 (D)
  78. —Art. 4(4)(19)—AJ&K Public Service Commission (Amendment) Ordinance, 2016—right to fair trial—right of hearing—removal of Members and Chairman P.S.C—challenge to– right of hearing, fair trial and due process are constitutionally guaranteed fundamental rights—no order or decree can be passed against a person without providing opportunity of hearing as well as right of fair trial—in an inquiry or prosecution, the individual faces the overwhelming power of department, the Government or  State– there needs to be equal access to justice —fair trial helps to establish the truth—right of hearing is  fundamental to the concept of  fair trial, which serves to limit governmental abuse, promote transparency and help to prevent miscarriage of justice—the right to fair trial is recognized internationally as a fundamental human right–U/Art. 4(4)(19), due process is  requirement that legal matters be resolved according to established rules and principles etc.—due process means that a person who would be affected by a decision must be served show-cause notice—the due process right guarantees that the Govt. cannot take a person’s basic right without due process of law. Azad Govt. & others  v. Kh. Muhammad Saleem Bismal & others 2022 SCR 430 (D &E) 2016 SCR 1, 2018 SCR 35 & 2020 SCR 361 ref.
  79. Fundamental rights — Right No.7 — Section 21(1) (E) — right to vote — Section 21(1) (E) vests a right in the elected members of Assembly to elect the members of Council — Fundamental right No.7 guarantees freedom of association, which includes the right to vote — The sitting members of Assembly have a right to elect the members of Council — They cannot be deprived of their right to vote. Raja Ikhlaq Hussain Kiani & 2 others v. Chief Election Commissioner & 53 others 2016 SCR 611 (E) PLD 2014 SC 72 & PLD 2005 SC 531 rel. 
  80. —Fundamental rights—Equality before law—Claim that employees of AJ&K Govt. may be treated at par with the employees of AJ&K Council— under the scheme of constitution, all the State subjects are equal before law, however, the clause cannot be attracted in every case especially where the persons are claiming the right of equality before law as is enshrined in the property—acquisition of land—No one could be deprived of his land without properly being compensated—This Court has time and again held that the right to property is recognized/protected by the Constitution under fundamental rights No.13 and 14 and no one can be deprived of this right without properly compensating him . In the instant case, after scrutinizing the record it appears that the   Collector   Land   Acquisition   while   determining   the compensation has also failed to discharge its duty and has not awarded proper compensation to the landowners. Ch. Muhammad Mushtaq & others vs Collector Land Acquisition & others 2018 SCR 1120 (C)
  81. Ss. 4, 42 — Land Acquisition Act, 1894, S. 4 — Acquisition proceedings — Award of compensation — Fundamental right of owner of land — It is the fundamental right of appellant to hold the property — If the Government Departments require land, they can take possession through lawful means  by acquiring the same under provisions of the Act — Held: Appellants were entitled for compensation of said land — High Court had dismissed writ petition on ground that appellant may resort to Custodian or Civil Court — Impugned findings of High Court were misconceived — Question raised before High Court was for enforcement of Fundamental Right — Fundamental rights cannot be enforced through Civil Courts — Remedy by way of writ petition was proper one for enforcement of Fundamental Right — Writ petition stood dismissed — Civil Appeal allowed by Supreme Court. ACQUISITION OF LAND —  (Fundamental Right) [For the acquired land, appellant was entitled for compensation. High Court had erroneously ordered appellant to have a resort to Civil Court. Fundamental rights could not be enforced through a Civil Court rather writ petition is an appropriate namely. Supreme Court allowed appeal] Khair-un-Nisa (Mst.) and 6 others v. Azad Govt. of the state of J&K 2013 SCR 668
  82.                 —Section 4(4) —Section 44—rights conferred on the State subjects— The rights conferred on the state subjects under Section 4 (4) are not exhaustive. Section 44 of the Act, itself confers a right of access to justice, subject to the restriction placed in the said section—This right cannot be denied to an aggrieved person through direct or indirect method. No direction could be issued to the Registrar to restrain him from performing his statutory duties of the office. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (X) AIR 1952 Pattna 309 ref.               
  83. S. 7 of the Constitution is applicable to sub-Constitutional laws — An express provision to the contrary forms an exception to rule. Abdul Latif & 2 others  v. Secretary AJ&K Council and 2 others 1999 SCR 235 (A)
  84. S. 7 — President to act on advice etc — The opening words in this section ‘‘subject to an express provision to the contrary in this Act’’ create an exception to the remaining part of the provision that the President has to act on the advice of the Prime Minister S.42,43 & 7 — Appointment of Judges of Supreme Court and High Court — Nature and applicability of constitutional provisions distinguished — Section 42 and 43 of the constitution Act provide the method for appointment of Judges with Supreme Court  and the High Court — Provisions of section 42 (4), and 43(2-A) are contrary provisions as postulated in section 7 and advice of council is expressly provided therein — A perusal of these provisions reveals that the matter of appointment of Judges in Supreme Court and High Court is specially provided therein — These postulate that a Judge of Supreme Court shall be appointed by the President on the advice of the council and after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of Azad Jammu and Kashmir shall be appointed by the President on the advice of the council — Similarly a Judge of the High Court shall be appointed by the President on the advice of the council and after consultation with the Chief Justice of AJ&K and the Chief Justice of the High Court of AJ&K. The High Court relied upon the judgment of the High Court in Muhammad Ayub Khan’s case — An appeal from the judgment of High Court was filed in this Court — The appeal was dismissed but the Court drew a distinction in the matters relating to subordinate laws and the Constitution — The referred case related to appointment of a member of P.S.C — The appointment of a member of P.S.C. was made under this P.S.C. Act — While dealing with the proposition it was observed that section 7 of Constitution Act is applicable to sub Constitutional laws and the President has to act on the advice of the Prime Minister in the matter falling in sub-constitutional laws. Held: The matters which are expressly provided contrary to section 7 in the Constitution Act, are not governed by section 7 of the Constitution Act. Muhammad Younas Tahir & another v. Shaukat Aziz & 15 others 2010 SCR 381 (A) 1999 SCR 235, discussed.   
  85. S. 7 — See Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42 (4). Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (G)
  86. Section 7 — Constitution of Islamic Republic of Pakistan, 1973 — Article 48 — exercise of powers by the President on advice — comparison of — scheme of Act, 1974 provides mode for exercise of powers by the President on various types of advices — under Art. 48 of Constitution of Pakistan, 1973, the President has to act on advice of the Prime Minister/Cabinet under section 7 of Act, 1974 except the words “subject to an express provision to the contrary in this Act”, the President has to act on and in accordance with the advice of the Prime Minister and such advice is binding. AJ&K Council v. AJ&K Govt. & 8 others 2016 SCR 145 (B)
  87. Section 7 — term ‘advice’ — scope and mode of — the term ‘advice’ in the Act, 1974 has been used in different sections and in each section it has its peculiar connotation and scope — it is not necessary that in the Constitution wherever the advice is required it means that advice can only be given when it is sought — under section 7 the President is bound to act according to advice of Prime Minister — it is very much clear that there is no occasion that the President seeks advice and then the Prime Minister gives the same — the scope of word ‘advice’ may be directory or mandatory but it has to be determined according to spirit and context of the relevant law. AJ&K Council v. AJ&K  Govt. & 8 others 2016 SCR 145 (AA)
  88. —Section 7 and 12—President to act on advice—exercise of executive authority— entire executive machinery in AJK is to function on the advice/direction of the Prime Minister, of course’ according to the Constitution and law—Wherever the word President is used in relation to the performance of his functions  relating to the executive authority of the  Government, the president is bound by the advice of the prime minister, and, wherever the President is to function in relation to executive authority of the council, that authority shall be exercised on the advice of AJK Council, which is usually advice of the Chairman of the Council— The President does not have any power independent of advice of the executive authority, whether it is Government or the Council under the scheme of Constitution and law. — The opening sentence of Sec 7 “subject to an express provision to the contrary in this Act referrers to those provisions of the Constitution under which the President is to act on the advice of the Council, in which case the advice of the Prime Minister is excluded—Every case which requires the approval of the President under rules of business, has to be approved on the advice of the Prime Minister—- A direction of the President without advice, approval without proposal or subsequent note or ratification of the proposal or note of the President by the Prime Minister is not allowed by the Constitution— No case can originate from the office of President. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (Q)  PLJ 1998 AJK 127, 1999 SCR 235 & PLD 1978 SC 37 ref.                                   
  89. Sections — 7,12,21,19,28,41,42,42-E, 43,50,50-A and 53 — exercise of powers by the President on the advice in the matters falling within the executive authority of Govt. & AJ&K Council — scope of — ordinarily, in the State the executive authority is exercised by the Govt., whereas, the AJ&K Council is also vested with the executive authority relating to specified matters — the President is a ceremonial head having no executive powers and under provisions of section 7 in performance of his functions, he has to act in accordance with the advice of the Prime Minister whereas in a special case of dissolution of Assembly specific provisions regarding advice and its operation is provided in section 28 — In relation to functions relating to AJ&K Govt. comprehensive general provision of section 7 has been incorporated without separate or special repetition of the same in other constitutional provisions but in case of AJ&K Council no general provision has been provided — For performance of functions by President in relation to matters to which the Executive Authority of the Council extends, he has to act on the advice of the Council as enumerated sections 41, 42, 42-E, 43, 50, 50-A and 53 — according to the spirit of the Constitution in performance of functions the President has either to act on the advice of Prime Minister as mentioned in sections 7 and 28 or act on advice of Council as enumerated in relevant constitutional provisions — sections 12 and 21 read with section 19 clearly demarcate and mention the exercise of executive authority by Govt. or AJ&K Council. The advice given by the AJ&K Council in compliance and furtherance of constitutional provisions is binding to be carried out by the President. AJK Council v. AJK Govt. 2016 SCR 145 (DD) AIR 1954 PEPSU 129 ref.
  90. Sections, 7, 20 & 28 — the word ‘advice’ — status, scope & interpretation of — the word ‘advice’ is capable of multi-dimensional meaning — the status and scope can be appreciated from another aspect which is the status of the person/authority who is advising and the status of person to whom it is advised — Ordinarily, when the advice is given by the person who is superior in authority or has commanding position, it shall be treated as command, order and direction as advice under sections 7& 28 etc. — whereas when the advice is tendered by the person who holds inferior position, it can be deemed suggestion, opinion, request or proposal as the advice under the provision of section 20 of the Act, 1974 — Held: for determination of the status of advice the multi-dimensional aspects have to be appreciated and no uniform or universal one word definition can be assigned — Further held: not only the statutory provision dealing with the specific proposition has to be interpreted while keeping in view the overall scheme and spirit of the Statute but all other possible aspects have also to be considered for determination of the status and scope of the term ‘advice’ — seeking of advice is also not a universal requirement — The advice can be given without being sought, specially, when the person giving the advice is in authoritative commanding position —  requirement of seeking the advice also depends upon the interpretation of relevant statutory provisions in specific context and circumstances.AJK Council v. AJK  Govt. 2016 SCR 145 (CC)
  91. Sections 7, 42, 43, 50 & 50-A — appointment to the offices — advice of Council — nature of — under section 7, the advice of Prime Minister shall be binding on the President — Although the words “such advice shall be binding on him” have not been used in sections 42,43,50 and 50-A for the appointment of Chief Justice of AJ&K, Judge Supreme Court, Chief Justice of High Court, Judge High Court, Chief Election Commissioner and Auditor General but law is settled that where same words and phrases are used in more than one provisions in relation to some subject matter and, if in one provision meaning is clear and in other provisions, it has some ambiguity then the same meaning shall be given to the later provisions as are given in former provision — Held: the advice of the Council is binding on the President, if it is in accordance with law and the Constitution and if the advice is against the provisions of the Constitution, it cannot be implemented. AJ&K Council v. AJ&K  Govt. & 8 others 2016 SCR 145 (J & J/1)
  92. S. 7, 42(4), 43(2-A) and 57 — Appointment of Judges — Process of initiation and Constitutions for appointment — The Judges in the High Court are appointed by the Presiden on the advice of the Council and after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court of AJ&K — The President has to consult with both the Chief Justices for appointment of Judges of the High Court — If the Chief Justices send the panels to Secretary Law or Law DCPH; what type of consultation this can be and whether the Secretary Law or Law Minister has to consult the Chief Justices ? — The process of consultation is between the President and the Chief Justice and according to phraseology employed in section 42(4) and 43(2-A) of the Constitution Act — It is only and only the President who has to consult the Chief Justice and no one else — Held: The finding of High Court that the President has to act on the advice of the Prime Minister under section 7 of the Constitution Act for appointing Judges in the Supreme Court and High Court is against the scope and scheme of the Constitution Act — Further held: Similarly the observation that there in no harm if the process is initiated by the Law Deptt. is violation of section 7, 42(4),43(2-A) and particularily section 57 of the Constitution Act. Muhammad Younas Tahir & another v. Shaukat Aziz & 15 others 2010 SCR 381 (B)
  93. Sections 7, 42, 43, 50, 50-A — advice — exercise of powers by the President — appointment to various offices — concept of panel — consultation — combined reading shows that under section 7 the President has to act on and in accordance with advice of the Prime Minister and such advice shall be binding on him subject to contrary provisions, provided in Act, 1974 — such provisions are exceptions for the appointment of the Chief Justice of AJ&K, a Judge in the Supreme Court,  Chief Justice of AJ&K High Court,  the Chief Election Commissioner and the Auditor General — the advice for these offices has to be tendered by the AJ&K Council — a Judge of the Supreme Court is appointed by the President on the advice of the Council after consultation with Chief Justice of AJ&K — Judge of the High Court is appointed by the President on the advice of the Council after consultation with Chief Justice of AJ&K and Chief Justice of High Court AJ&K — the Chief Justice of  High Court is appointed by the President on the advice of the Council after consultation with Chief Justice of AJ&K — the Chief Justice AJ&K, Chief Election Commissioner and Auditor General are appointed by the President on the advice of the Council — For appointment to these offices the word consultation is missing — Held: the concept of panel relates to the consultation in the matter where consultation is provided — the President shall consult with the consulties, who shall provide panel of the suitable person, qualified to be appointed against the post and the president shall seek advice from the council and Council shall issue advice from the said panel. AJK Council v. AJK Govt. & 8 others 2016 SCR 145 (C) PLD 2012 SC (AJ&K) 42 ref.
  94. — Section 8—acting president—performance of functions—Scope of — when the President is unable to perform his functions due to illness or any other cause, the speaker of the assembly shall act as President and shall perform functions of the President—Held: There is no difference between the President and Acting President as far as the functions of the President are concerned, as both have to act on the advice of the Prime Minister because executive authority of the Government is exercised by the Prime Minister, not by the President, hence it is the satisfaction of the Prime Minister which is of paramount importance, not of President, who has no option but to act as advised. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (R)  PLD 1978 Karachi 807 ref.                               
  95. S.11 — Plebiscite Advisor — The provision of Constitution nowhere contains that only an elected person can be appointed as Plebiscite Advisor — It empowers the President to appoint any person as Plebiscite Advisor No qualification is provided for appointment of such Advisor — Plebiscite is the most important assignment, which relates to the fate of people of Jammu and Kashmir — Advisor has to advise the Government in relation to holding of plebiscite — If an unelected person can be appointed for such important assignment — Then why such person cannot be appointed for internal affairs of the State regarding the schemes for development etc. It could not be said that Prime Minister has travelled beyond the Constitutional limits while appointing an unelected person as Advisor because the Constitution nowhere contains that only an elected person should be appointed as Advisor. Ch. M. Yasin v. Sardar M. Naeem Khan & 3 others 2010 SCR 17 (G)
  96. S. 12 — Executive authority of AJK shall be exercised by the Govt. consisting of Prime Minister & Ministers. Abdul Latif & 2 others v. Secretary AJK Council and 2 others 1999 SCR 235 (C)
  97. —section 12—executive authority of AJ&K Govt.—shall be exercised in the name of President—Government, consists of—Prime Minister and Ministers—No doubt under the provisions of section 12 of the Interim Constitution Act, 1974 the executive authority of the Azad Jammu and Kashmir shall be exercised in the name of the President by the Government, consisting of the Prime Minister and Ministers. Ch. Latif Akbar & others v.Azad Govt. & others 2017 SCR 305 (G)
  98. —Article 12—Rules of Business, 1985—rules 3 to 8—All the executive powers and authority exercised by the department or other officials are in fact exercised on behalf of Government—Azad Govt. & 2 others v. Naeem Akhtar & 3 others 2019 SCR 719 (A)
  99. Section 12 (3) — Government — Consists of — Prime Minister and the Ministers — who collectively responsible to Assembly — effective representative exalted forum — to tackle issues — According to the constitutional spirit, specially, sub-section (3) of section 12 of act, 1974. The Constitution clearly provides more effective representative exalted forum to attend all the issues and take necessary steps to make decisions. M. Akhtar v. Azad Govt. 2016 SCR 853 (E)
  100. –Section 12(3)— the Prime  Minister and the Ministers—collectively responsible to—the AJ&K Legislative Assembly— matters falling within domain of Executive or Government—may be laid down before Assembly— but there is no provision that any matter which falls within the domain of Executive or Government, cannot be laid down before the Assembly. Under the provisions of sub section (3) of section 12 of the Interim Constitution Act, 1974 the Prime Minister and the Ministers are collectively responsible to the Assembly. Ch. Latif Akbar & others v.Azad Govt. & others 2017 SCR 305 (H)
  101. Section 12 (5) — Government the executive authority — Delegations of powers — The executive authority of Azad Jammu and Kashmir rests in the Government — The Government to regulate its functions may delegate functions to subordinate authorities. Ehtesab Bureau v. Rashid Ahmed Katal & 4 others 2011 SCR 512 (E)
  102. —Sections 12 & 21 (7) —Azad Govt. & AJ&K Council— employees’ terms and conditions—governing laws—contention that employees of Govt. may be given the pay & privilege as are given to employees of Council—Under section 12, the executive authority of Govt. is to be exercised by the Govt. consisting of Prime Minister and the Ministers in the name of the President, whereas, under section 21(7) the Council has been given executive authority in the matter it has power to make laws and the authority is exercisable in the name of the Chairman— different set of laws are applicable to the employees the Council as well as the Azad Govt.— The pay and privileges are surely different— Federal Government Rules of Business 1973, have been adapted by the Council for running its business, whereas, Civil Servants Act, 1976 and rules made thereunder, has been adopted by the Government for regulation, induction and promotion of its employees. Thus, held: it cannot be said the employees of the Council as well as theGovernment are similarly placed— The rule of equality of the citizens before law is not of general implication—It has to be considered in light of the circumstances of each case. Azad Govt. & another vs Saddiq Hussain Wani & others 2018 SCR 830 (B)
  103. —Arts 12 & 52—under the scheme of the Constitution the worthy President enjoys complete immunity—the worthy President is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties— Azad Govt. & 8 others V. Barrister Adnan Nawaz Khan & 46 others 2020 SCR 591(E)
  104. S. 13 — Shamlat-e-Deh — “Shamlat-e-Deh” land, is a common land of the villagers and the Government or any other State authority is not empowered to transfer said land — Such-like transfer is violative to the constitutionally guaranteed fundamental rights of property. Ghulam Rasool v. Said Ahmed 2012 SCR 367 (B)
  105. — Right No. 15 — AJ&K Custodian of Evacuee Property (Appointment, Terms & Conditions of Service) Rules, 2021 — rule 3 (1) — appointment of Custodian — equal treatment before law — powers and functions exercised by Custodian (appellant) closely align with those of previous custodians, who were declared to be entitled to the terms and conditions equivalent to those of a High Court Judge — appellant was subjected to discretionary treatment as the Govt. failed to provide any valid justification for the differentiation — Ch. Khalid Yousaf versus AJK & 03 others 2023 SCR 987 (F) 2019 SCR 697, 2002 SCMR 71 & PLJ 2013 SC (AJ&K) 186 ref
  106. Section 15, 21 (4-C) &(5) and 28 — under sections 21 (4-C), an election to fill a vacancy in the office of an elected member shall be held not later than 30 days from the occurrence of the vacancy or, if the election cannot be held within the period because the Assembly is dissolved, within 30 days of the general election to the Assembly — The proviso to section 21 (5)  carves out a special situation that an elected member shall continue to hold the office until his successor enters upon his office — The scope of the proviso extends only for the period mentioned in part first of subsection (4-C) and the period mentioned in Section 28 —  Similar situation is provided under Section 15, which provides, the Prime Minister to continue in the office till his successor enters upon his office, that means after the election to the Assembly, when the tenure of the Assembly is expired, the new assembly takes oath and till the new Prime Minister is elected, the period intervening between the expiry of the tenure of old Assembly and the election of the new Prime Minister, the sitting Prime Minister shall continue in the office. It does not extend beyond that period, if the elections are postponed up to an indefinite period. Raja Ikhlaq Hussain Kiani & 2 others v. Chief Election Commissioner & 53 others 2016 SCR 611 (C)
  107. —Art. 16 (3) —resignation of Prime Minister— Speaker’s agenda for election to office of PM in the session of Assembly summoned for purpose of resolution for vote of no confidence— effect of —writ—Sub-Art. (3) of Art. 16, deals with two eventualities, — if the Assembly is not in session the worth President shall for that purpose summon the Assembly to meet within fourteen days —after resignation of the Prime Minister resolution for vote of no confidence automatically came to an end, hence, the eventuality of commencement of session came to an end before its commencement—u/Art. Article 16(3), the President was under the obligation to summon the Assembly within 14 days for the purpose of election to the office of Prime Minister— Speaker was not justified at all to issue the impugned agenda of meeting. Sardar Tanveer Ilyas v. Ch. Muhammad Yasin & others 2022 SCR 646 (A&B)
  108. —Arts. 16(3), 34 and 44—-proceedings of Assembly— order of Speaker—challenge to—writ—maintainability of— Speaker issued agenda for election to the office of Prime Minister in the session summoned for voting on motion of no confidence— the meeting of Assembly was no more required to be held due to resignation by the Prime Minister—The order of Speaker was not in consonance with and permitted by Article 16(3), hence, provisions of Art. 44 stood attracted and the writ petition was competent. Sardar Tanveer Ilyas v. Ch. Muhammad Yasin & others 2022 SCR 646 (I)
  109. Section 19 — executive authority of the Govt. — its extent — Govt. shall exercise its executive authority to the matters with respect to which the Assembly has power to make laws — Govt. shall not impede or prejudice the responsibilities of Govt. of Pakistan in relation to the matters specified in section 31 (3) —  The Govt. may with the consent of the Council, entrust, to the Council or its officers, the functions in relation to any matter to which the executive authority of the Govt. extends. Presidential reference v. 2015 SCR 1249 (H)
  110. —Art.19—parity claimed with Punjab—upgradation of posts—arguments of parity repelled, however—Held: After the 13th amendment under Article the Cabinet Division D.O. No.8/9/70-Cord-1 dated the 11.5.1971 has been recognized for the purpose of guiding principles— claim of upgradation of posts cannot be refused—respondents deserve the same treatment as their counterparts in federating units of Pakistan in the light of Cabinet Division D.O. , irrespective of the principle of parity with Punjab, the claim of the respondents is justified. Azad Govt.& others vs Syed Zhoor Hussain Shah &others 2018 SCR 876 (A)
  111. Section 19(1) — Executive authority of Government — its extent — trichotomy of powers — Main state organs — under the provisions of subsection 1 of section 19 of the Constitution Act, 1974, the executive authority of the Government has been determined — regarding the matters which fall within the legislative competence of the Legislative Assembly, the executive authority of the Government also extend — the laws dealing with the services of a person holding the judicial office are made by the Assembly—that the executive authority of the Government extends to this extent — Under the Constitutional scheme, the main organs are legislature, Government and the judiciary in the trichotomy of powers — all the three organs in some matters are interrelated and interdependent for delivering an integrated system and at the same time in performance of their assigned functions, they also enjoy independence — In the Constitutional civilized states, the main State organs are not opponent, rival or strangers for each other, rather they have to act while maintaining the constitutional demarcated boundaries and limits with each other, and adopt strategy of mutual co-existence, acceptance and co-operation. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (HH)
  112. Section 19 (1) — legislature — its powers of legislation — extent of Executive authority — independent status of judiciary — term ‘Government Service’ used in Act, 2001 — appreciation of — the legislature has got powers of legislation subject to the constitutional limits — the Government or judiciary cannot interfere with these powers unless the legislature travels beyond its domain — Judiciary is independent in performance of the judicial duties and administration of justice — the matters, like provision of budget, financial requirements i.e creation of posts etc. are the matters relating to the executive authority of the Government. To this extent there is a demarcated relation between the Government and the judiciary but it does not mean that judiciary becomes subordinate to the Government — Held: the term “Government service” as used in Act, 2001, is used in broader sense referring to the executive authority according to section 19 (1) of Constitution for a limited purpose without interference in the independence of judiciary. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (II)
  113. Sections 19, 21, 31, 50, 42-D & 50-A — appointment of Chief Election Commissioner — legislative competence — combined reading of sections and while considering the pith and substance of the matter, concluded that matter does not fall in the legislative competence of the Council — it is a residuary matter and the Legislative Assembly is competent to legislate for the appointment (Terms and Conditions) of Chief Election Commissioner. Presidential reference v. — 2015 SCR  1249 (P)
  114. — Arts. 19,31,42 & 44—trichotomy of powers—role of legislature—legislative background of an enactment—under constitutional scheme, three main organs of the State i.e., the Legislature, the Executive and the Judiciary have been conferred powers to perform its functions— the legislature is given powers to make laws—except divine law, that too at times has exceptions, no law of the land remains forever as constant and unamendable—law has to conform with emerging dictates of time, realizing and acknowledging the emerging issues. Muhammad Yasir Safeer Mughal  Versus  Fayyaz Ahmed Janjua & 6 others 2021 SCR 6 (B)
  115. Sections 19, 31 & 50 — appointment of Chief Election Commissioner — legislative competence — Arguments that Chief Election Commissioner is appointed on the advice of the Council and the issuance of advice is an executive function, therefore, the Council is competent to legislate in the matter — The arguments appears to be misconceived — The Act, 1974 has unique character — The Judges and Chief Justice of the Supreme Court and High Court are appointed by the President on the advice of the Council — In constitution of Pakistan, 1973 only Majlis-e-Shoora makes laws for conferring jurisdiction upon Supreme Court — jurisdiction in AJ&K is conferred upon Supreme Court by the Legislative Assembly — under the provision of IPL, 1974, Family Courts Act, 1993 and Legislative Assembly (Elections) Ordinance, 1970, a right has been provided to file appeal to the Supreme Court — Held: mere power to issue advice cannot confer legislative Authority in the Council — The advice cannot be issued on its own or in vacuum — The advice can be issued whenever the appointing authority seeks the advice. Presidential reference v. — 2015 SCR 1249  (M&O)PLD 2012 SC (AJ&K) 42 ref.
  116. —Art. 20—Advocate-General—AJ&K Law Officers (Terms & Conditions) Act, 2014—terms & conditions of —writ–maintainability— the relationship between the Advocate General and the Govt. is essentially that of an Advocate and a client in relation to his appearance in the Courts—the perks and privileges have to be settled by the Govt. which may be increased or reduced–in case, the terms and conditions so settled are not acceptable by the Advocate General or Law Officers they have an option to resign but claiming enhancement of the remuneration by filing a writ petition is not justified. AJ&K Government & 3 others Versus Muhammad Ishaq & 19 others 2021 SCR 23 (J)
  117. —Art. 20—Advocate General—functions, duties & obligations of—the principal function of the Advocate General is to provide independent legal advice and represent the Govt. in the superior Courts—he has to work as a bridge between the Govt. and the Courts—assist the Superior Courts as a Law officer—prosecutes contemners—protect public rights etc. AJ&K Government & 3 others Versus Muhammad Ishaq & 19 others 2021 SCR 23 (M)
  118. —Art. 20—Advocate-General—qualification of— critarion for appointment—Advocate General is the principal Law Officer of the Govt.—it is his duty to advise the Govt. in the legal and constitutional matters —he has the right to sit, take part and speak in the proceedings of the Assembly—the most trusted person possessing the qualification of  Judge, High Court is appointed as Advocate General—no tenure or duration of the office of the Advocate General is prescribed like a Judge  High Court rather he can hold the office even after the age of 62 years— possessing qualification to be appointed as a Judge of the High Court, prima facie, means that the Advocate General must be of the level of a Judge of the High Court by virtue of his knowledge, conduct, calibre, etc. AJ&K Government & 3 others Versus Muhammad Ishaq & 19 others 2021 SCR 23 (O)
  119. —Art. 20—AJ&K Law Officers (terms & conditions) Act, 2014—Law Department Manual, 2016—Supreme Court noticed that besides Advocate-General, a large number of Law Officers are appointed by the Govt— despite they being paid from the public exchequer, the private counsel is also engaged by the Govt.—if the Govt. contends that none amongst its law officers is capable of handling the cases then why incompetent persons are appointed—in such a scenario the public suffers twice—public exchequer is not there to be squandered in this manner—the State must protect the assets of the State and its citizens from waste and malversation—in presence of the Law Officers, being paid from the Govt. exchequer there is no occasion to engage a private counsel in Supreme Court and High Court—in exceptional cases having constitutional importance or involving complex technicalities of some particular fields, after consultation with the Advocate-General and prior permission of the Court the private counsel can be engaged to assist the Advocate General but it cannot be allowed to make a practice–the departments in which the Legal Advisors are appointed, are not allowed to engage additional counsel. AJ&K Government & 3 others Versus Muhammad Ishaq & 19 others 2021 SCR 23 (P,Q &R.) PLD 2017 SC 121 ref.
  120. —Art. 20—Azad Penal Code, 1860—section 302—-murder—- double jeopardy—proposition “whether enhancement of sentence of a convict, who has already undergone one of the legal sentences, amounts to double jeopardy”— concept of—Supreme Court in the case reported as 2009 SCR 470 while relying on 2002 SCMR 93 formed the view that on the charge of Qatl-i-Amd, if a convict has served out the sentence of imprisonment for life, the enhancement of sentence to death would be hit by the doctrine of double jeopardy, however, subsequently, the Court reiterated the view taken in PLD 2006 SC 365 and PLD 2013 SC 793 that there is no rule of general application that serving out of sentence during pendency of appeal/revision, by itself, would constitute a bar for enhancement of sentence or any exercise to that effect would be violative of the principle of double jeopardy and held: in the case reported as 2014 SCR 121, that where during pendency of appeal of convict of death, he served out life imprisonment, his case is not covered by the principle of double jeopardy but the fact of serving out life imprisonment may be considered as a mitigating circumstance—The Supreme Court while overruling the view formed in 2009 SCR 470 held that (i) the fact of serving out life imprisonment can be considered as a mitigating circumstance, (ii) the principle of double jeopardy, by no way, is a bar for enhancement and final determination of sentence by appellate Court and (iii) the fact of serving out of life imprisonment will not be considered a mitigating circumstance for the benefit of convict who himself is responsible for delay in conclusion of judicial remedies. Nani Sultana v. Tanveer Ahmed & others 2022 SCR 615 (A, B, C, D & E) 2009 SCR 470 overruled 2014 SCR 121, PLD 2006 SC 365, PLD 2013 SC 793 and PLD 2015 SC 50 rel.
  121. —Arts. 20 & 43—Advocate-General—procedure for appointment and qualification of—President shall appoint a person, being a person qualified to be appointed a Judge of High Court to be Advocate General—High Court held that no person shall be appointed as Advocate General without consultation with the Chief Justices of AJ&K and High Court— the Advocate General is appointed under Art. 20 whereas the Judge of the High Court is appointed under At. 43—both the provisions are independent–since Art. 20 itself does not envisage consultation by the President with the Chief Justices of AJ&K and High Court, hence High Court wrongly read the same into Art. 43— there was no occasion for the High court to itself imagine the word ‘consultation’ in Art. 20 merely on the flimsy ground that the qualification of Advocate General and that of Judge High Court is same, hence the procedure for appointment should also be the same. AJ&K Government & 3 others Versus Muhammad Ishaq & 19 others 2021 SCR 23 (B), D&E PLD 2011 SC 7 rel.
  122. —Art. 20 & 43—Advocate-General—qualification for appointment— a person qualified to be appointed a Judge of the High Court shall be appointed as the Advocate General—The qualification provided under Article 43 for appointment of a Judge of the High Court is that he should have been an Advocate or Pleader of the High Court for a period aggregating not less than ten years–the expression “has been an advocate of the High Court” should be taken to mean “has been practicing before the High Court”— It is to be assessed whether an advocate who handles very few briefs in a year could be said to be actually practicing—while making appointment to the post of Advocate-General the concerned should have to assess the ability of the advocate, the volume of his practice etc AJ&K Government & 3 others Versus Muhammad Ishaq & 19 others 2021 SCR 23 (N)
  123. Section 21 — executive authority of the Council — its extent — under section 21 (7), the executive authority of Council shall extend to all the matters with respect to which the Council has power to make laws. Presidential reference v. — 2015 SCR 1249 (I)
  124. Section 21 — AJ&K Council — its formation — consists of the P.M of Pakistan, the President, 5 Members to be nominated by the P.M of Pakistan from amongst Federal Ministers & member of Parliament, the   Prime Minister of AJ&K or a person nominated by him and 6 members to be elected by the Assembly from amongst state subjects in accordance with the system of proportional representation by means of the single transferable vote. Raja Ikhlaq Hussain Kiani & 2 others v. Chief Election Commissioner & 53 others 2016 SCR 611 (A)
  125. —Section 21—Chairman AJ&K council—status of—jurisdiction of Courts of AJ&K—Held: The Prime Minister of Pakistan is the functionary of the Government of Pakistan and is ex-officio Chairman of Azad JammuandKashmir Council —He is very much with the jurisdiction of the Supreme Court of Pakistan— The Government and Courts of AJK are autonomous within the territories of AJK and  not beyond —No court of AJK question the validity of proceedings of any Court constituted under the Constitution of Pakistan. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K2017 SCR 759 (L)                                                 
  126. Sections 21(1) (E), 21(4-C), 22(4) — AJ&K Council (Election) Act, 1976 — Section 10 — schedule issued by the Chief Election Commissioner challenged — Held: schedule issued in the light of the provisions contained in Section 21(4-C) read with Section 10 of the Act, 1976, is valid — the members of Assembly have a vested right under Section 21(1)(E) of the Azad Jammu & Kashmir Interim Constitution Act, 1974 to elect the members of AJ&K Council — Chief Election Commissioner  is duty bond to conduct free, fair and transparent elections Raja Ikhlaq Hussain Kiani & 2 others v. Chief Election Commissioner & 53 others 2016 SCR 611 (G)
  127. Section 21(4-C) — AJ&K Council (Election) Act, 1976 — Section 10 — contention that Assembly is going to expire after a period of 2½ months — such Assembly cannot elect the members of the Council for 5 years — Held: No provision is contained in the Constitution that an Assembly, whose tenure is limited, cannot legislate or elect a member for future or perform any act, which is within its legislative competence — under Section 21(4-C), a vacancy in the office of elected member of the Council shall be filled in not later than 30 days of the occurrence of  vacancy — Chief Election Commissioner is duty bound  to conduct elections for Council seats under Sections 21(4-C) and 10 of  Act, 1976. Raja Ikhlaq Hussain Kiani & 2 others v. Chief Election Commissioner & 53 others 2016 SCR 611 (F)
  128. Section 21(5) — term of office of the members of AJ&K Council — an elected member of the Council shall hold office for a term of 5 years from the day he enters upon his office — under proviso to section 21 (5) an elected member shall notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. Raja Ikhlaq Hussain Kiani & 2 others v. Chief Election Commissioner & 53 others 2016 SCR 611 (B)
  129. Section 21 (7) & 13 — exercise of authority and delegation of powers — delegation of power’s order dated 15th Nov, 1992 — appeal before Supreme Court — competency of — u/s 21(7) authority of the Council is to be exercised in the name of the Council by the Chairman who may, u/s  21 (13) delegate any of its functions to the officer or authority subordinate to it — under delegation of powers’ order Secretary AJ&K Council has only been delegated with the powers to sign and verify the plaint, written statement and instrument in any suit by or against the AJ&K Council in any Court on behalf of the AJ&K Council, its Chairman or any public officer or may appoint an Advocate on behalf of Council — The powers delegated in this order only authorize the Secretary Incharge Council Secretariat to act on behalf of Council, but he himself has not been authorized to substitute himself or Council or Chairman — Held: the Secretary AJ&K Council can act on behalf of the Principal but cannot be treated as substitute of Principal. Secretary AJ&K Council & another v. Sajjad Hussain Shah & 22 others 2016 SCR 1549 (B&C)
  130. —Section 24—Constitution of Islamic Republic of Pakistan, 1973—Articles 62 & 63—AJ&K Legislative Assembly(Elections Ordinance, 1970—section 5(1)—qualifications and disqualifications for being a   member Legislative Assembly— Legislative background— ‘qualifications’ and ‘disqualifications’ were provided in section 24, like Articles 62 and 63— later on certain other qualifications and disqualifications were added in Article 62 and 63— laws have been borrowing from Pakistan and through  Amending Act II of 1987, apart from the qualifications enumerated in the Act,, 1974, certain qualifications were also added in the Ordinance, 1970. Sardar Ghulam Sadiq v.          Khan Bhadar Khan & others 2017 SCR 55 (A)
  131.                                                     — Section 24—AJ&K Legislative Assembly (Elections) Ordinance 1970—qualifications and disqualifications–scope and interpretation of—sub section (1) of section 24 recognizes only three qualifications— a person who possesses 3 qualifications is entitled to be elected as a member of Assembly—  sub-section 2 provides disqualifications in shape of clauses (a), (b), (c), (d) and (e)—clause (f) of sub-section (2), provides that apart from five disqualifications, a candidate otherwise disqualified from being a member of the Assembly by this Act or by or under any other law— disqualification may be provided in any other law— the legislature is fully competent to legislate and add the disqualification apart from disqualifications provided in the Act, 1974—Held: sub-section (1) of section 24, does not recognize any other qualification for being a member of the Assembly. Sardar Ghulam Sadiq v. Khan Bhadar Khan & others 2017 SCR 55 (B)
  132.                                                     — Section 24— qualifications—Held: under section 24(1), only three qualifications are prescribed and there is no concept of other qualification by the subordinate law. Sardar Ghulam Sadiq v.    Khan Bhadar Khan & others 2017 SCR 55 (C)
  133. —Section 24—Constitution of Islamic Republic of Pakistan, 1973—Articles 62 & 63—AJ&K Legislative Assembly (Elections) Ordinance, 1970—section 5—qualifications and disqualifications for being a member Legislative Assembly—juxtapose study— further qualifications and disqualifications were added in Articles 62 and 63— amendments made were followed but instead of providing qualifications and disqualifications in sub section (1) and (2) of section 24 the same were added in section 5(1) (2) of Ordinance—Held:  disqualifications  can be added as postulated under clause (f) of sub-section (2) of Section 24 but there is no concept of adding the qualification in sub section (1) of section 5—–because section 24(1) does not prove qualification  ‘by or under any other law’, like section 24(2) (f). Sardar Ghulam Sadiq v.Khan Bhadar Khan & others 2017 SCR 55 (F) 2001 SCR 380 rel.
  134. — Section 24—AJ&K Legislative Assembly (Elections) Ordinance, 1970—section 5—ultraviries—Held: ‘qualification’ and ‘disqualification’ are two distinct matters, though can be read in continuation— Section 24(1) recognizes only three qualifications— no other qualification can be added in subordinate law without amending Act, 1974— in the light of sub-section (2) of section 24 disqualification can validly be added by the Act of the Legislative Assembly in subordinate law in sub-section (2) of section 5—Further held:  clauses (d), (e) and (f) of sub-section (1) of section 5 added through the amending Act , cannot be read for disqualifying a person from contesting the elections  of Assembly. Sardar Ghulam Sadiq v. Khan Bhadar Khan & others 2017 SCR 55 (G)
  135. It is a cardinal canon of interpretation that when the meanings of a word or term used in a statute are clear and unambiguous the Court cannot go beyond them and has to take them in their ordinary meanings — Without amending the Constitution no ‘‘qualification’’ can be added in section 24(1) of the Constitution Act. Muhammad Yousaf  v. The State and 4 others 2001 SCR 380 (B)
  136. —Art .24(2)(f)—AJ&K Legislative Assembly (Elections) Ordinance, 1970—sections 5(1)(f) and 5(2)(x)—disqualification of member Legislative Assembly—review—argument that under Constitutional provisions, a member can only be disqualified if he is convicted and sentenced to imprisonment for a term not less than two years—Held: under Art.24(2)(f), a person shall be disqualified from being so elected if he is otherwise disqualified from being a member of the Assembly by the Constitution or by or under any other law—under section 5(1)(f) of Ordinance 1970, a person shall be disqualified to be elected as and to be a member if he is sagacious, righteous, honest, ameen and not profligate—under section 5(2)(x) of Ordinance, 1970, a person shall be disqualified from being elected or chosen and for being a member, if he is found guilty of corrupt or illegal practice under any other law for the time being in force—after declaring a person guilty of an illegal act/practice, the Court can pass an order for disqualification from being elected or chosen and from being a member, thus if it cannot be said that the order passed by the Court is not covered by any law. Chaudhary Muhammad  Saeed V. Haji Javed Akram 2020 SCR 617 (B)
  137. S.24(2) (F) — “Disqualification” can be provided by enacting law — Under the scheme of Constitution Act law can be enacted either by the Assembly or when it is not in session through the promulgation of an Ordinance by the President — “Qualification” under sub- section (1) and “disqualification” under sub-section (2) 0f S.24 by enacting law under the authority of sub- clause(F) sub-section (2) of S.24 are two shades of the same picture — These are so interchained to each other — Both must be read together and not in isolation — Therefore a person who fulfils the requisite “qualification” laid down under Constitution Act and also does not suffer from any of the “disqualification” can contest election for the Legislative Assembly. Muhammad Yousaf  v. The State and 4 others 2001 SCR 380 (C)
  138. — article 25(3) — election to vacant seat of Assembly — time frame of — application for stay of election — if a seat in the Assembly becomes vacant within 120 days before the Assembly’s term expires, an election must be held within 60 days of the vacancy occurring — the use of word “shall” in the provision indicates the mandatory nature of conducting election within specified 60 days — candidates already completed campaigns and voters are prepared to cast their votes, halting the election at this stage would deviate the Constitution’s explicit mandatory provision. Raja Muhammad Shafat Khan & others v. AJ&K Election Commission & others 2023 SCR 110 (A)
  139. Section 31 — Islam is the state religion and there will be no law repugnant to the Holy Qur’an and Sunnah. Zafar alias Mumtaz & another v. Mst. Sajjad Begum & 7 others 2014 SCR 1549 (F)
  140. Section 31 — Constitution of Islamic Republic of Pakistan, 1973 — Article 142 — Legislative powers under section 31 are divided into three parts — One part is to be performed by the Govt. of Pakistan —  Neither the Council, nor the Assembly has power to make any law concerning the matters enumerated in section 31(3) — apart from the matters enumerated in sub-section (3), both; the Council and the Assembly have powers to make laws — under section 31(2)  the Council shall have exclusive powers to make laws with respect to any matter incorporated in the Council Legislative List, set out in the third Schedule — in respect of residuary matters the Assembly have the powers to make laws — Section 31(4) confers powers  both in the Council and Assembly for levying the tax for the territories of AJ&K — Similar provisions are found under Article 142 of Constitution of Pakistan. Presidential reference v. — 2015 SCR 1249 (G)
  141. Section 31 — Constitution of Pakistan — Articles 141,142 & 143 — distribution of legislative powers —  legislative powers of Council & Assembly — determination and scope of — Sub-section (2) of section 31 refers to Council legislative its set out in third schedule — 52 items are entered in the list — all the matters which are not entered  in the list, fall in the legislative competence of Assembly, — the subject matter, topics or nature of activities on which the legislative structure for making laws, have to be looked into —  the question is raised  for the first time but the matter of legislative competence came under consideration of the Supreme Court of Pakistan in a number of cases —  under Article 142 — the Majlis-e-Shoora and Provincial Assemblies had jurisdiction in the matters enumerated in the fourth schedule  while both the Majlis-eShoora and Provincial Assemblies had jurisdiction in the matters enumerated in the  Concurrent Legislative List — Residuary matters were left with the Provincial Assemblies. Presidential reference v. — 2015 SCR 1249 (J) 1999 SCMR 1477 ref.
  142. Section 31— Legislative competence of Assembly and Council — The Legislative Assembly has legislative authority over the subject matters, topics and activities not enumerated in the Council Legislative List —Council Legislative List is not conclusive and entry No.51 is entered for covering the matters which are in the legislative competence of the Council but are not enumerated in the Council Legislative List. Presidential reference v. — 2015 SCR 1249 (K)
  143.                 —Section 31—Industrial Development Bank Limited —legislative powers of Council & Assembly— the employees of the IDBL do not fall within the scope of the persons holding the posts or service in connection with the affairs of the AJ&K, thus, Held: for determining the terms and conditions of these persons neither Assembly nor the Council is empowered to legislate. Industrial Development Bank Limited v. Sajid Hameed & others 2017 SCR 850 (G) 2000 SCR 507 rel.
  144. Section 31 & Section 50-A — legislative competence of council — appointment of Auditor General —  under section 50- A  (3), the terms and conditions of service including the terms of office of Auditor General shall be determined by the Act of the Council. The matter of Legislation in respect of terms and condition of Auditor General is not entered in the Council Legislative List — Held: mere absence of a specific matter in the council legislative list does not debar the council from legislation in the matter, if otherwise the matter falls within the legislative competence of Council according to scheme of constitution — Further held:. For determining the legislative competence in respect of the matters not enumerated in the list, the pith and substance of the matter has to be considered. Presidential reference v. — 2015 SCR 1249 (L)
  145.  S. 31(1) AJK Council and AJK Assembly are not empowered to legislate in respect of officers of the EOB Institution — Powers to make laws outside AJ&K are restricted only to state subjects wherever they may be and to officers of the Council and of the Govt. wherever they may be — Officers of EOB Institution are not officers of the Council or the Govt. Law cannot be framed so as to confer powers or functions on the employees of EOB Institution by the legislative bodies of AJ&K — AJK Employee Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act, 1980 was not competently enacted and was void from its inception — AJK Council(Validation laws)Act 1995 also suffered from same illegality so far as it purported to validate Act X of 1980 — Therefore, both the Acts are struck down for want of legislative competence — All actions taken and order passed by the EOB Institution in respect of the Jabeer Hotel and steps taken by the functionaries in Azad Jammu and Kashmir under direction EOB Institutions were also without lawful authority and of no legal effect. Jabber Hotel Mirpur v. Kashmir Council Islamabad and 4 others 2000 SCR 507 (C)
  146. Section 31(4) — Enhancement of tuition fees — Writ against — Acceptance of with declaration that tuition fee is a tax and impugned raise was ultra vires of Constitution — Appeal against — A tax is a compulsory exaction of money by a public authority for a public purpose and is not a payment for any specific service rendered — In respect of fee there is Quid pro quo while in a tax it is absent — A tuition fee is paid by one who goes to school and not by one who does not — Tuition fee as well as admission fee charged from students could not by any standard be construed as a tax — Appeal accepted. Azad Govt. v. Haji Mir M. Naseer 2000 SCR 109 (A, B, C & D)
  147. Section 31(4) — Opening of new school and colleges and creation of new posts — Appointments on said posts — Writ against — Acceptance of — Appeal against — Application and interviews already conducted before creation of new vacancies — Post should be available before they are advertised — Procedure adopted in recruitment under reference is not only bad in law but it has resulted in grave miscarriage of justice — Appointments made against posts created were invalid — Respondents Nos. 10 to 70 have not been validly appointed and post held by them declared vacant — Impugned judgment set aside. Azad Government v. Haji Mir Muhammad Naseer and 10 others 2000 SCR 109 (E, F & G)
  148. S. 31(5) The power to look into the vires of the law to find out whether it is violative of the injunctions of Holy Quran and Sunnah is covered by the Constitution — Question that under what authority this power has been taken away? Shariat Court Act is a sub-constitutional law and this proposition cannot be accepted that a power vested in this Court or any other Court by the Constitution can be taken away by sub-constitutional provision — If the Azad Jammu and Kashmir Council makes a law in respect of a subject which is not included in the relevant schedule and is within the legislative powers of the Assembly all Courts in AJK are empowered to ignore such a law because the Constitution is supreme and all judicial and executive functionaries have to implement the Constitution. The High Court and this Court have an additional jurisdiction in the shape of writ jurisdiction under section 44 of the Interim Constitution Act under which a law can be declared void. To hold that the power has been taken away from this Court and given to the Shariat Court is to allow the legislature to erode the authority of this Court as well as the supermacy of the Constitution. Azad Government v. Muhammad Youns Tahir & other 1994 SCR 341 (HH)
  149. S. 31(5) — Jurisdiction of the High Court to declare a law as void — After the promulgation of the Azad Jammu and Kashmir Shariat Court Act and the Azad Jammu and Kashmir Shariat Enforcement Act, 1989 the High Court has no jurisdiction to declare a law as repugnant to Quran and Sunnah, if at all it had the jurisdiction before the promulgation of the Shariat Court Act and Shariat Act — It is well settled principle of law that general jurisdiction vested in a Court is taken away where special jurisdiction is created. Azad Govt. v. M. Youns Tahir  1994 SCR 341 (YY)
  150. S. 31(5) provides that no law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah — AJ&K  Legislative Assembly took positive steps to bring all existing laws in conformity with the canons of Quran and Sunnah and Islamic Law was intoroduced in respect of civil and criminal cases — New Courts  like Tehsil and District Criminal Courts and Shariat Court were established — Process in Azad Kashmir continued by repealing, amending and adapting laws introduced in Pakistan — Adapted laws of old regime also repealed. Zeeshan Butt v. Jamila Shafi 2007 SCR 187 (B)
  151. S. 31 (5) — See Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 3. Muhammad Hanif v. State 2012 SCR 146 (B)
  152. Ss. 31(5) & 32 — A combined reading of the two sections shows that a law framed after the promulgation of Interim Constitution Act which is repugnant to Quran and Sunnah would not be void; it is to be brought in conformity with Quran and Sunnah as laid down in the Shariat Court Act and the Shariat Act. Azad Government v. M. Youns Tahir & other 1994 SCR 341 (ZZ)
  153. Sections 31 & 51 — jurisdiction of Court to examine the validity of Constitutional provisions — argument that according to Act, 1974, Islam is the State religion and the provisions of Act, 1974 permitting the classes of State Subjects are against the principles of Islam as envisaged in the provision of section 31 of Act, 1974 — Held: this aspect of the Constitutional provision cannot be deeply examined in the light of provision of section 51 of Act, 1974, which gives protection to the enforced law. Juxtapose consideration of the provisions of Sections 31 and 51, amounts to the conclusion that the provision of Act, 1974 are immuned from such examination. Under the provisions of Shariat Court Act, 1993, the Act, 1974 is excluded from definition of law for exercising the Court’s jurisdiction to determine whether any provision of law is repugnant to Qur’an and Sunnah or not.  Further held:  the definition of State Subject which provides the classes among the State Subjects so long it remains intact, the validity of this Constitutional provision cannot be examined by this Court. Haider Ali v. Qurat-ul-Ain Latif 2014 SCR 196 (E)
  154. —Arts. 34 & 44—writ—proceedings of the Assembly— validity—challenge to—judicial scrutiny by the Courts— if the impugned act or order performed during the ‘proceedings’ of the Assembly is tainted with mere any procedural irregularity then the judicial review of such act or order is not permitted—if the act or order goes against the basic theme of Constitution or defeat any provision of the Constitution or falls into illegality, then the judicial scrutiny of such act or order is permissible under the writ jurisdiction. Sardar Tanveer Ilyas v. Ch. Muhammad Yasin & others 2022 SCR 646 (H) AIR 1966 Cal 363 & PLD 2012 SC 774 rel.
  155. Section 38 (5) — AJ&K Consolidated Fund — expenditure from — the Govt. have power to authorise as such — The bare reading of this statutory provision clearly speaks that the Government shall have power to authorize expenditure from the Azad Jammu and Kashmir Consolidated Fund and shall cause to be laid before the Assembly a Budget or, as the case may be, and excess budget, setting the amount of that expenditure. Thus it is clear that the matters of expending amount from Consolidated Fund to meet the insufficiency of allocated funds or proving some new service not included in the Annual Budget, subject to the condition that the expenditure shall be laid before the Assembly as Budget; fall within the domain of the Government. Muhammad Akhtar & 183 others v. Azad Govt. & 7 others 2016 SCR 853 (D)
  156. Specific Relief Act (1 of 1877) — Ss.  39 & 42 — Transfer of Property Act (IV of 1882), S. 122 — See AJ&K Interim Constitution Act (VIII of 1974), S.42. Muhammad Aziz Khan v. Muhammad Hanfi 2012 SCR 115 (A)
  157. S. 41-An Ordinance promulgated by the President has the same force and effect as an Act of the Assembly — if it is not disapproved by the Assembly or withdrawn by the President stands repealed at the expiration of four months from its promulgation. Mir Haider Shah v. Azad Government 1992 SCR 320 (C)
  158. S. 41 — Ordinance — President Powers of — Words ‘make and promulgate’ an Ordinance — Meaning of — sub-section (2) lays down that ‘promulgated’ Ordinance shall have the same force and effect as an Act of Assembly — An Ordinance ‘made’ by President does not have the effect of an Act of Assembly unless it is ‘promulgated’. Muhammad Tariq Khan v. The State and another 1997 SCR 318 (B)
  159. S. 41 — Ordinance — An Ordinance comes into force not when it is made by the President but when it is promulgated. M. Tariq Khan v. The State and another 1997 SCR 318 (C, D)
  160. S. 41 — Law which creates rights and obligations must be made known to public at large — It must at least be published in Official Gazette — Private or limited circulation of an Ordinance cannot be accepted as ‘promulgation’. M. Tariq Khan  v. The State 1997 SCR 318 (H)
  161. S. 41 — See Specific Relief Act, 1877, Ss. 42, 22. Azad Govt. of the State of J&K through its Chief Secretary, Civil Secretariat, Muzaffarabad v. Neelum Flour Mills Asgharabad, Muzaffarabad, through Mufti Kafait Hussain Naqvi 2013 SCR 16 (D)
  162. S. 41 — See Specific Relief Act, 1877, S. 8 Jalal-ud-Din v. Mst. Rozman 2013 SCR 29 (B)
  163. S. 41— scope & extent — makes it clear that the President is empowered to promulgate an Ordinance when Assembly is not in session and President is satisfied with the existing circumstances which render it necessary to take immediate action, he may promulgate the Ordinance — such Ordinance shall have the powers of an Act of the Assembly — the section further provides that it shall stand repealed on expiration of 4 months from its promulgation — it shall be laid before the Assembly within a period of four months and if a resolution before expiration of four months is passed by the Assembly by which it is disapproved — then it shall be repealed — the President may withdraw an Ordinance at anytime. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (J)
  164. S. 41— Powers of the President to promulgate Ordinance — existence of circumstances — the President is empowered to promulgate the Ordinance; (A) the Assembly is not in session (B) when the President is satisfied that circumstances exist which require immediate action — the powers of President are not unfettered — the powers of President are subject to same restrictions which apply to Assembly to make the laws — Further restrictions is imposed that Ordinance shall be laid before the Assembly and at the expiration of a period of four months from its promulgation — the President may withdraw the Ordinance at anytime — held: that when the Assembly is not in session and the President is satisfied that circumstances exist which render immediate action, he may promulgate the Ordinance — Held: the existence of circumstances for satisfaction of President taking immediate action is necessary. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (L)
  165. S. 41 — Ordinance — re-enactment on same subject — it is mandatory to lay the Ordinance before the Assembly within the period of four months and the President has no power to re-enact the same. Syed Mumtaz H. Naqvi v. R. M. Farooq Haider Khan & 4 others 2014 SCR 43 (W-1 & W-2)   
  166. S. 41— the President has no power to re-enact an Ordinance on the same subject — it is mandatory to lay the Ordinance before the Assembly before the expiry of its life. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (DD)
  167. Section 41 — ordinance — validly promulgated — powers to promulgate — vest with the President —power exercisable — when emergent situation exist — and assembly not in session — the President is empowered  to promulgate an ordinance if he is satisfied that existing circumstances render it necessary to bring forth an emergent legislation. The powers conferred on the President to issue Ordinance are exercisable in the nature of an emergency which render it necessary for taking immediate action and such action becomes necessary at a time when the Legislative Assembly is not in session. Azad Govt. v. Sr. Javed Naz & 2 others 2016 SCR 400 (A)
  168. Section 41 — ordinance — effect of — as of an Act — limitations on power — if not laid in and approved by Assembly — lapses after four months — the President, while invoking this provision, cannot overreach the Assembly to do what the Assembly cannot do in exercise of its legislative power. It is settled law that once Ordinance has been validly promulgated, the same has the same force and effect as of an Act of the Assembly, however, if the same is not laid before the Legislative Assembly and approved, it shall lapse on the expiry of four months. Meaning thereby, that an Ordinance validly promulgated, bears the life of four months. Azad Govt. & 4 others v. Sr. Javed Naz & 2 others 2016 SCR 400 (B)
  169. Section 41— ordinance — promulgation of — powers of President — subject to conditions and not unguided — the powers of the President are subject to some conditions and are not unguided. First condition is the satisfaction by the President that the existing circumstances render it necessary to take immediate action and the second condition is that the Legislative Assembly is not in session. The ingredients attached with the first condition are; the emergent situation and immediate action. It is pertinent to mention here that primary law making authority under the Constitution is the Legislature, however, the possibility cannot be ruled out that when the Legislature is not in session the circumstances may arise which render it necessary to take immediate action and in such a case in order to secure the public interest till the matter is brought before the Assembly (the Legislature) the President can make laws through temporary legislation. Azad Govt. & 4 others v. Sardar Javed Naz & 2 others 2016 SCR 400 (C) 2014 SCR 43 rel.
  170. Section 41— ordinance — promulgation of — after laying of earlier ordinance before Assembly —subsequent one cannot  be made — after laying of the Ordinance in shape of bill before the Legislative Assembly, the Ordinance cannot be promulgated, thereafter. Azad Govt. & 4 others v. Sardar Javed Naz & 2 others 2016 SCR 400 (D)
  171. Section 41— ordinance — promulgation of — emergent situation — determination of — one factor — Ordinance was made and promulgated to meet the extraordinary situation, however, after promulgation, the Ordinance remained ineffective and the same was near to complete its Constitutional life when the appointment notification of appellants No.4 and 5 was issued, meaning thereby, that no emergent circumstances were existing which constrained the President to exercise the powers under section 41 of Act, 1974. Azad Govt. v. Sardar Javed Naz 2016 SCR 400 (E)
  172. Section 41— ordinance — upon tabling of the bill before Assembly — the power of the President to re-promulgate the same ordinance vanishes — under section 41 of Act, 1974, once a bill is introduced in the Legislative Assembly, the President’s power of promulgation of same ordinance vanises and he cannot do so. It is now settled that the President has no such powers to re-enact the same ordinance repetitively. Held: Ordinance No. XVIII of 2014, not constitutionally promulgated Azad Govt. & 4 others v. Sardar Javed Naz & 2 others 2016 SCR 400 (H) 2014 SCR 43 rel.
  173. S. 41 (1) (2)&(4) — Ordinance — President powers of — To meet the emergent situation arising when Assembly is not in session the President under section 41(1),(2)&(4) is empowered to make Ordinance. Muhammad Tariq Khan v. The State and another 1997 SCR 318 (A)
  174. S. 41(2) — When an Ordinance stands repealed its effect is that actions taken under the Ordinance remain un-effected. Mir Haider Shah v. Azad Government 1992 SCR 320 (D)
  175. —section 41 (11) (d) & (e)—direct appeal before Supreme Court  can be filed if the amount or value of the subject-matter in dispute in the Court of first instance was and also in appeal is not less than fifty thousand rupees or such other sum as may be specified in that behalf by the Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below. Khaliq Nawaz &others v. AJ&K Govt. & others 2017 SCR 1504 (A)
  176. Ss. 41, 22 & 27 — The President has been empowered to issue and promulgate an Ordinance, which shall be repealed at the expiration of a period of four months — the life of an Ordinance has been fixed as four months unless it is disapproved by the Assembly — sub-section 2(A) — makes it clear that Ordinance shall be laid before the Assembly before expiration of four months.  
  177. S. 22 — provides that every Assembly unless sooner dissolved, shall continue for five years and expiration of said period of five years shall operate as dissolution of Assembly — the general elections to the Assembly shall be held within a period of sixty days — the provision of conducting elections within a period of sixty days immediately before the day on which the term of Assembly expires, is supportive of the argument that life of an Ordinance cannot be extended by re-enacting the same.
  178. S. 27 — postulates that there shall be at least four sessions of Assembly every year and three months shall not intervene between the first Sitting of Assembly in one session and first Sitting of the Assembly in next session — meeting of Assembly after a period of three months is clear indicative of the fact that life of an Ordinance provided for a period of four months is in line with S. 22(3 & (4) and S. 27(3) of the Constitution Act — when the Assembly is in existence it has to meet under the provision of S. 27 after expiration of every three months. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (V)
  179. S. 42 — Any judgment, decree or order of High Court or any other authority which runs counter to the dictum of this Court shall be non-existent in the eye of law — Dictum of this Court must prevail. Chairman AJK Council v. Abdul Latif and 5 others 1997 SCR 264 (C)
  180. S. 42 — Shariat Court AJK — Establishment of — Challenged to — Writ accepted — appeal against — Supreme Court has come to Constitution Act — Thus, if a special Court or for that matter Shariat Court can be legally constituted under Section 46 of Constitution Act, there is no reason why jurisdiction to hear appeals and revisions etc. cannot be conferred on such Courts by subordinate legislation when aforesaid Constitutional provision authorises so — Similarly, if jurisdiction on Shariat Court or for that matter any other Court can be duly conferred by subordinate legislation, there is no reason to hold that appeals and revisions etc. against orders of such Court could be competent only to High Court and not to Supreme Court  — It is nowhere laid down in Constitution Act that a Special Court can only be established if an appeal or revision etc. against its order and judgment is made competent  only to High Court and not to any other forum including Supreme Court — Such an embargo on powers of Legislature would amount to subversion of Constitutional provisions which empower Legislature to confer jurisdiction including  appellant  and revisional jurisdiction on High Court as well on Supreme Court by subordinate legislation — Thus, Supreme Court is unable to subscribe to view taken by High Court that establishment of Shariat Court is violative of Constitutional provisions contained in section 42 of Constitution Act because aforesaid provision does not envisage an appeal against judgment and order etc., except that of High Court. Azad Govt. v. Genuine Rights Commission AJK  1999 SCR 1 (I)
  181. S. 42 — Offences if Respect of Banks (Special Courts) Ordinance (IX of 1984), S. 6(2) & Sched .II — Penal Code (XLV of 1860), 409/419/420/467 & 468 — Transfer of case to Special Court — Validity —Accused, who had challenged order of High Court whereby case was remanded to Special Court constituted under Offences in Respect of Banks(Special Courts) Ordinance, 1984, had contended that in case his contention that High Court was not justified in remanding case to Special Court, was accepted by Supreme Court ,accused could be acquitted by the Supreme Court instead of remanding matter  to the High Court for decision on merits — Contention of accused was repelled on the ground that appeal to Supreme Court having been preferred by leave, Supreme Court would not decide matter in absence of findings of High Court on the matter one way or the other. Muhammad Anwar Baig v. The State 2000 SCR 399 (B) Prof.Syed Sadiq Hussain Shah v. Azad Govt. 1997 PCr.LJ 1837; Karam Hussain v. Basharat Hussain PLD 1991 SC (AJ&K) 27;Muhamad Alam v. The State PLD 1967 SC 259; Reffering Authority /Chief Secretary ,Azad Govt. of the State Jammu and kashmir v. Sardar Sikandar Hayat Khan PLD 1982    SC (AJ&K) 112 and Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 ref.
  182. S. 42 — Appeal against judgment and decree of High Court — Non-impleading of two co-sharers as party in appeal when they were party before High Court — Effect — Such persons having not been implead as party in appeal, interest accrued to them under judgment of High Court would not be adversely affected. M. Khalid and 3 others v. M. Akram and 10 others 2000 SCR 412 (A)
  183. S. 42 — Judgments of superior Courts — Implementation of — Controversy whether appellant (a closure watcher/Beldar) is a civil servant in BPS-1 or not has since been settled by High Court — Even the Supreme Court in case titled Secretary Forests & others v. Umar Din[2005 SCR 103] held that in view of Government  orders dated 5.5.1981 and 1.9.1986, all contingent paid employees have been brought to normal budget and those holding the posts of Beldars and Closures Watcher are entitled to pension — All the functionaries of the State are bound under Constitution to implement the judgments of superior judiciary in letters and spirit. Aziz-ur-Rehman v. Azad Government and 5 others 2007 SCR 258 (A)
  184. S. 42 — Services in State of Azad Jammu and Kashmir are regulated under law as postulated by S. 49 — Therefore, even if an order is not challenged by any person adversely affected, the order issued in contravention of the rules will not attain legality. Muhammad Farid Shahzad v. Azad Govt. & 11 others 2009 SCR 143 (I)
  185. S. 42 — If the High Court or the District Judge feels that it is not necessary to call for record of subordinate Court while exercising revisional jurisdiction, the Court can direct the petitioner to furnish copies of pleadings, relevant documents and orders, so that it can decide the revision petition. Tariq Mehmood v. Contractor Ahmed Din and 4 others 2009 SCR 294 (E)
  186. S. 42 — S. 115 — Revision Petition was admitted for regular hearing — High Court summoned the record of subordinate Court, which shows that condition of filing the copies of pleadings and documents has impliedly been condoned — Held: The Court was not  justified in dismissing the petition after a period of more than a year of summoning the record on technical ground — Held further: It was incumbent upon the High Court to decide the revision petition on merits. Tariq Mehmood v. Contractor Ahmed Din and 4 others 2009 SCR 294 (D) PLD 1986 AJ&K 228 rel.
  187. S. 42 — Appeal to Supreme Court — Point which was not raised in the trial Court and in the Appellate Courts below, could not be allowed to be raised for the first time in the Supreme Court — If a point was taken in the lower Court or the high Court; and it involved inquiry into the facts, said point could not be raised for the first time in Supreme Court. Punoo Khan v. Iqbal Begum and 19 others 2012 SCR 196 (C) Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139; Shaikh Abdul Aziz v. Mirza and 3 others PLD 1989 SC (AJ&K) 78 and Abdul Rahman and others v. Abdul Qadir and others 1998 CLC 401 (Sic) rel.
  188. S. 42 — See AJK Dowry & Bridal Gifts (Restriction) Act, 1976, Ss. 3, 10. Zahida Parveen v. Raja Masood Ahmed Khan 2013 SCR (SC AJ&K) 50
  189. S. 42 — See Supreme Court Rules, 1978, O.XLIII, R.5. Barkat Ali another v. Sultan Mehmood and others  2013 SCR 56 (B)
  190. S. 42 — Appointment against permanent post — Principle — Petitioners had been inducted into service on contract basis — Neither the posts were advertised for permanent induction nor petitioners had been appointed on permanent basis — Petitioner filed a writ petition praying inter alia that respondents be directed to treat them as permanent civil servants duly appointed against vacancies of Computer Instructor — Petitioners succeeded in getting an interim injunction, thus process of selection on merit was kept in abeyance — Thus petitioner had succeeded to get their contract appointment to be continued for more than a decade’s period — Held: Appointment against permanent post has to be strictly made on merits — Writ jurisdiction could not be exercised for protection of ill-gotten gains — Induction against a post in Civil Service is a trust bestowed by Almighty Allah and the same shall have to be fulfilled honestly and any dishonest mode or practice amounts to violation of the commands of Allah Almighty — Impugned judgment of High Court was well-reasoned and consistent with the spirit of Constitution and of principle of law enunciated by apex Court — It is also a celebrated principle of law that what is not allowed to be done directly cannot be permitted to be done indirectly — Posts had been advertised, all the eligible candidates including petitioners may compete for merit and it is the best mode of equal treatment before law — Further held, if any of petitioner due to reason of filing of writ petition had not submitted  application to Public Service Commission, he or any of them may be allowed to submit application to the Public Service Commission, he or any of them may be allowed to submit application to the Public Service Commission with 15 days — Civil appeal was dismissed by Supreme Court. APPOINTMENT —(Permanent post) Appointment against permanent post has to be strictly made on merit. Writ petition was rightly dismissed. Mudassar Manzoor Qureshi v. Azad Govt. of the state of J&K 2013 SCR 150 (C)
  191. S. 42 — Ehtesab Bureau Act, 2001,  S. 7 — Contract Policy, 2006 — Contract appointment — Term of the office of Deputy Chairman Ehtesab Bureau shall not be less than three years from the date of joining — It was alleged that due to change of Government, respondents were likely to amend, modify or cancel notification who may be refrained to do so — High Court sought parawise comments and ordered for maintaining status-quo — Whether appointment made for a particular period under any Act could be deemed as contract appointment and whether it could be terminated before completion of such period of not? — Legal questions — Validity — Important legal questions were involved in instant petitions which could only be resolved in regular appeal — Leave to appeal was granted by Supreme Court. CONTRACT APPOINTMENT — (Legal questions) [Whether contract appointment could be terminated before completion of such fixed period? Leave to appeal was granted]. Azad Govt. v. Haji M. Ashraf, Deputy Chairman, Muzaffarabad  2013 SCR  156
  192. S. 42 — See Specific Relief Act, 1877, S. 42. Pervaiz Khan and 27 others v. Adalat Khan and 217 others  2013 SCR (SC AJ&K) 262 (D)
  193. S. 42 — See AJ&K Civil Servant Act, 1976. Chief Engineer, Public Works Department (Highways Division), Azad Govt. of the State of Jammu and Kashmir  v. M. Saeed, Charge Clerk, PWD, Highways Division No.1, Muzaffarabad and 7 others 2013 SCR 335
  194. S. 42 — See Civil Procedure Code, 1908, O.VII, R.11. Ch. Muhammad Hanif (Deceased) Rep. by L.Rs. v. Mst. Zainab Bibi and 12 others 2013 SCR 413 (E)
  195. S. 42 — Civil Procedure Code, 1908, S.100, O.XLI, R.31 — Specific Relief Act, 1877, S.8 — Title dispute — Suit for possession — Plaintiffs-respondents filed a suit for possession on ground that that they were owners of land in dispute and defendants were their tenants — Issues — Trial Court decreed suit and appeal there against was dismissed — Second appeal before High Court also failed — Concurrent findings of facts — It was asserted that property in dispute was evacuee one and Civil Court had no jurisdiction to entertain suit besides first Appellate Court had not recorded the findings issue-wise — Appreciation of evidence —Validity — Said order passed by the Custodian was brought on record of Trial Court where the Custodian of Evacuee Property had declared that property was not evacuee one — When the property was not evacuee, there was no question of allotment in favour of defendants-appellants — Although District Judge had not recorded findings issue-wise but he had considered record which was part of file of Trial Court and dismissed appeal after considering the whole record — Findings of fact recorded by two Courts below could not be disturbed by High Court in second appeal — High Court had correctly declined to interfere with concurrent findings recorded by two Courts below — Civil appeal was dismissed. TITLE DISPUTE —(Concurrent findings of facts) Sr. Begum (Mst.) v. M. Ilyas  2013 SCR 433 (B)
  196. S. 42 — Specific Relief Act, 1877, S. 8 — Title dispute — Suit for possession — Plaintiff-appellant filed a suit for possession on ground that he was owner in land in dispute and respondents-defendants had got sanctioned mutation in their favour on some forged/faked document, which mutation was cancelled by Revenue hierarchy — Defendants-respondents had relied upon a compromise decree in respect of land in dispute — Issues — Trial Court dismissed suit on question of limitation but it was declared that plaintiff was owner of said land — First Appellate Court accepted appeal and it was held that plaintiff-appellant was not owner of land in dispute — High Court dismissed second appeal — Appreciation of evidence — Validity — Said consent decree was still intact — Defendants were in continuous possession of land and house before time of partition — Land in dispute never remained in possession of plaintiff — Copy of decree sheet was a thirty years old document — If a thirty years old documents is acted upon and it is supported by possession, the presumption can rightly be drawn in favour of genuineness of such document — Plaintiff failed to prove his ownership in land — Only a lawful owner could file a suit for possession — In instant case since plaintiff failed to prove his title, therefore, he was not entitled to possession of land — After failure of plaintiff to prove take, question of limitation was not relevant — Civil Appeal was dismissed by Supreme Court. TITLE DISPUTE — (Consent decree) [Plaintiff-appellant failed to prove his ownership in suit land. Suit for possession was correctly dismissed. Supreme Court dismissed appeal]. Zahid Hussain v. Afsar Din and 11 others 2013 SCR 488 (B)
  197. S. 42 — Installation of electric aerial supply — Precautionary measures — Necessary directions were issued to the Government by Supreme Court. The Azad Govt. v. M. Abbas Khan Khatak and 3 others 2013 SCR 495 (A)
  198. S. 42 — Electricity Rules, 1937, R. 69(2)(3) — Electricity Act, 1910 — Negligence of Electricity Department — Suit for recovery of money as damages — Electricity Department had installed so high intensity aerial lines just at a distance of 4 to 6 inches from residential building without taking any care or caution which resulted into tragic incident in which a child had become disabled for his whole life — Loss of earning capacity — Plaintiff-appellant prayed for enhancement of the amount of compensation — Issues — Spot inspection — Appreciation of evidence — Validity — Report of Commission which was appointed on application of defendants, and whose statement and report remained un-challenged was a cogent piece of evidence, fully admissible, reliable and un-impeachable — Department of Electricity is under the statutory obligation to maintain the prescribed standards and take the precautions as are laid down in said rules — Instant tragic incident took place due to negligence of Electricity Department which resulted into permanent physical disability of plaintiff-appellant — Thus throughout rest of his life plaintiff would have to suffer with the feeling that he was no more a normal person and could not enjoy amenities of life as normal person could do — In such-like cases, compensation in addition to compensation for mental and physical pain suffered, was separate that is awarded on account of loss of earning capacity — Courts have to consider the factors for estimation of damages of the annual dependency of the number of years purchased — Plaintiff met the accident at age of approximately 10 years and keeping in view average life of family members and principle of law, his expected life was determined as 65 years — Thus it meant that 55 years of age of plaintiff would be considered as the years purchased for calculation of compensation — Decree awarded by Trial Court stood modified to the extent suit of plaintiff-appellant was decreed to tune of Rs. 1,50,000/- as costs for treatment, Rs. 5,00,000/-as compensation for mental torture to plaintiff and Rs. 39,06,000/- as expected earning of the years purchased — Thus a decree to tune of Rs.45,56,000/- was granted to plaintiff-appellant — Civil appeal was allowed by Supreme Court. NEGLIGENCE OF ELECTRICITY DEPARTMENT — (Damages) [Due to negligence of Electricity Department, said incident took place in which a 10 years old child had become disable for his whole life. Supreme Court while allowing appeal enhanced amount of compensation]. The Azad Govt. and 3 others v. M. Abbas Khan Khatak and 3 others 2013 SCR 495 (A, B )
  199. S. 42 — Mirpur University of Sciences and Technology Ordinance, 2008, Ss. 8, 41, 10, 11 — Appointment of Vice-Chancellor of MUST — Eligibility criteria — Transitional appointment — Additional charge — Exercise of discretionary powers — Non-obstante clause — Features of cause/analysis — It was contented that subsequently the Chancellor could not exercise discretionary powers for appointment of Vice-Chancellor, except adopting the method prescribed by law — For the transitory period, the Chancellor is vested with the discretionary powers for appointment the first Vice-Chancellor while dispersing with mode and procedure of appointment prescribed in the MUST Ordinance — MUST Ordinance has attached some personal qualification with the Vice-Chancellor, whether permanently or under transitory provision is appointed, there is no exemption with regard to prescribed personal qualification — Without mentioned qualification, no one could be appointed or given the status of Vice-Chancellor — Phraseology of “notwithstanding anything contained” does not mean that the Chancellor can appoint any person without having regard to said qualification — Benefit of non-obstante could be availed with regard to mode and process of regular appointment — Word ‘appointment’ includes the assignment of additional charges of the post or an office — When once the Chancellor had exercised his powers under the transitory provision, and appointed first Vice-Chancellor the discretionary powers under transitory provisions came to end — It would be very strange that academicians who were holding the Ph.D. Degree to be placed subordinate to a person who was neither holding such a degree nor due to any extra qualification or services or degree of knowledge was recognized as academician of international repute — Appellant’s qualification according to record was not upto the mark, to be called as an eminent academician or scholar of international repute — Impugned judgment of High Court did not suffer from any legal infirmity demanding for interference by Supreme Court — Civil appeal dismissed. APPOINTMENT OF VICE CHANCELLOR OF MUST —(Eligibility criteria)[Appellant’s qualification for appointment as Vice-Chancellor of University was not up to the mark. High Court correctly allowed writ petition of respondents. Supreme Court dismissed appeal]. Prof. Eng. Naib Hussain vice Chancellor v. Engineer Prof. Dr. M. Riaz and others 2013 SCR (SC AJ&K) 529 (F)
  200. S. 42 — Specific Relief Act, 1877, Ss. 42/39 — Limitation Act, 1908, Art. 120 — Suit for declaration and cancellation — Void document — Point of limitation — No limitation runs against an order which is void ab initio — Purported agreement was a document which was void ab initio and subsequent proceedings conducted on basis of said document were also void and had no legal consequences — Held: Suit of respondents-plaintiffs was filed within time — No illegality in impugned judgment/decree of High Court — Civil appeal was dismissed by Supreme Court. FRAUD/VOID DOCUMENT — (Point of limitation) [As the basic document i.e. agreement was void ab initio in instant case, therefore, suit of the plaintiff-respondent was within time. Impugned judgment of High Court was maintained by Supreme Court]. Aziza Begum v. M. Hussain Khan through L.H. 2013 SCR 563 (H)
  201. S. 42 — AJK Land Acquisition Rules, 1994 — Land Acquisition Act, 1894 — Award — Determination of compensation — Whether Collector Land Acquisition was competent to assess the compensation of the acquired land while relying upon the notification issued by the Commission under rule 10 of the Rules without resorting to the provisions of Sections 23 and 24 of the Act? — Key proposition — Principle of Law — Provisions of Rule 10 have no nexus and application for determination of market value for the purpose of Award — Held: Compensation assessed by Collector Land Acquisition in light of some notification issued by the Commission under rule 10 was against legal provisions — Compensation could only be assessed under Section 23 and 24 of the Act — Order accordingly. LAND ACQUISITION — (Determination of compensation) Collector, Land Acquisition while determining compensation kept in view notification issued under Rule 10 which was wrong. Ejaz Ahmed Mir v. Collector land Acquisition & 3 others 2013 SCR 603 (D)
  202. S. 42 — AJK Waqf Properties Act, 1960, Ss. 6, 7 — Administrator Auqaf Properties took over the control of shrine known as Darbar Alia Pir Ganohi and all the properties connected with it — Respondents challenged the said notification by filing an application before the District Dudge on ground that land in dispute was Shamlat Deh on the village and they were owners in village and were in possession of Shamlat Deh land as of right — It was further asserted that fresh Notification could not be issued in pursuance of final judgment of Supreme Court — District Judge dismissed said application — High Court accepted appeal thereagainst — Matter had earlier being decided by Supreme Court in categorical terms that respondents were only Mutwali, they had got not any personal right in the property in dispute — Held: When it had already been declared by Supreme Court that respondents were not holding possession of said shrine in their personal right, they were holding possession as mutawali, they were estopped to claim that they were in possession of land in dispute in capacity of owners in village — Impugned judgment of High Court was set aside — Civil appeal allowed. AUQAF NOTIFICATION — (Validity) Since it had already been declared by Supreme Court that possession of disputed shrine was not held by respondents in their personal right but they  were holding possession as Mutawali, they were estopped to re-agitate the matter in the capacity of owner of Shamlat Deh. Supreme Court allowed appeal and petition before District Judge stood dismissed. Chief Administrator Auqaf v. Karram H. 2013 SCR  621 (B)
  203. S. 42 — See Land Acquisition Act, 1894, Ss. 4, 18, 25, 24. M. Mehrban v. WAPDA through Chief Engineer/Project Director Mangla Dam Raising Project, Mirpur 2013 SCR  635
  204. S. 42 — Land Acquisition Act, 1894, Ss. 4, 18, 23 — Mirpur Development Authority Regulation for Development and Disposal of Estates, 1977, Arts. 13, 14 r/w S. 39, MDA Ordinance — Land Acquisition proceedings — Award of compensation — Market value — Criteria — Order of transfer by MDA —Validity — Certificate issued by the Authority in respect of any sale, lease or exchange or any other transfer is sufficient proof of title and such certificate is admissible in evidence — Plot which was the subject of appeal was not situated in a village rather in a city — Collector Land Acquisition sought details of plots transferred within a period of one year prior to the issuance of notification — Collector calculated average prior of those plots and had assessed  the compensation accordingly — Collector had accepted transfer order issued by MDA and price entered thereon — It was enjoined upon the Collector to apply uniform criteria for assessing market value of same type of plots located at same place — It appeared that Collector had although assigned no reason for awarding lessor compensation of all these plots, but the note endorsed by him that these plots were of additional scheme is indicative of mind of the Collector — Appellant was entitled for compensation in relation to ratio determined by Collector himself — Reference Judge had committed an error while not relying upon order of transfer by MDA — Held: Appellant was entitled to compensation of the said amount alongwith 15% compulsory acquisition charges on basis of average price calculated by Collector Land Acquisition — Civil appeal accepted. LAND ACQUISITION — (Compensation) WAPDA and another v. Sardar Asif Ayub Khan and another 2013 SCR (SC AJ&K) 673 (D)
  205. S. 42 — See AJK University Act, 1985. Tahira Maqbool, lecturer (Zoology), University of Azad Jammu and Kashmir, Muzaffarabad and 3 others v. Chanellor of the University of Azad Jammu and Kashmir, Muzaffarabad and 7 others 2013 SCR (SC AJ&K) 702 (A)
  206. S. 42 — AJK Supreme Court Rules, 1978, O.XLVI, R.1 — Civil Procedure Code, 1908, O.XLVII, R.1 — Specific Relief Act, 1877, Ss. 42, 12 — Agreement for grinding of wheat was entered into between parties — Handling charges — Suit for declaration/perpetual injunction — Issues — Trial Court decreed suit — Petitioner filed an appeal which was dismissed  — Second appeal filed before High Court also met same fate — Petitioner filed an appeal before Supreme Court which was partly accepted — Review petition — Interpretation of fact/law — It was contended that a suit for declaration and cancellation of impugned order was against law and provisions of the agreement in dispute, when the suit to the extent be granted and that suit was purely declaratory one and the Court had passed decree for specific performance, therefore, review was justified — Held: Review could not be granted on the ground that another view was possible from the facts of the case or law could be interpreted in another way — Plaintiff had specifically alleged that he was entitled for payment of handling changes under provision of the said agreement entered into between parties and decree had been correctly passed — Suit was filed on violation of agreement in respect of handling charges — Where breach of agreement was attributed to defendant, the suit was correctly dealt with under Section 22 of the SRA — In instant case, there was no apparent mistake on record — Petitioner had failed to make out a case for review of the impugned judgment — Review petition dismissed. REVIEW — (Different interpretation of fact/law) In instant case, there was no error apparent on the face of record. Review cannot be granted that a different interpretation of facts or law is possible. Azad Govt. v. Neelum Floor Mills, Asgharabad, Muzaffarabad 2013 SCR 725
  207. S. 42 — Specific Relief Act, 1877, S. 42 — Ownership dispute — Suit for declaration — Amended plaint — Framing of additional issue — Controversy — Plaintiffs/appellants had abandoned claim to the extent of said land while suit reviewed only to extent of mentioned Khasra No. — Held: There was no need for framing additional issue — Appellants failed to point out which additional issue was necessary for correct decision of case — There were concurrent findings of facts which could not be disturbed by Supreme Court — Civil appeal dismissed. AMENDED PLAINT — (Framing of additional issue) In amended suit, claim of plaintiff/appellant was narrowed down to the extent of said Khasra Nos., therefore, framing of additional issue was not required. There were concurrent findings recorded by Courts below. Supreme Court dismissed appeal. Mehmood Hussain Shah and 5 others v. Muhammad Hanif and 2 others 2013 SCR (SC AJ&K) 732
  208. S. 42 — Post of Instructor Plant Protection, B-17 — Advertisement — Nomenclature of required education/degree, qualification was B.Sc.(Hons) Agriculture Plant Protection — Statutory rules — Post of instructor when carries specific nomenclature, the required qualification in the statutory rules is according to their nomenclature — According to spirit of rules, B.Sc. (Hons.) degree could not be substituted with the B.SC. Agronomy, Agricultural Engineering, Soil Sciences, Horticulture or plant Protection — Those were separate and distinct degrees — Held: Petitioner had failed to substantiate his stand by production of a certificate of equivalence from the Higher Education Commission which according to law is the sole authority to determine the status and equivalence of the degree — Substitution or amendment in the law is duty of the concerned legislative body or authority and not the Court — Impugned judgment and not the Court — Impugned judgment of High Court appeared  to be quite consistent with principle of law — Petition for leave to appeal was dismissed by Supreme Court. ADVERTISED POST — (Eligibility) Petitioner failed to produce certificate of equivalence from Higher Education Commission to substantiate that B.Sc. (Hons.) degree could be substituted with B.Sc. Agronomy. Petition for leave to appeal was dismissed by Supreme Court. Adnan Ghulam Rasool v. Nosheen Qureshi  2013 SCR 761 (C)
  209. S. 42 — Civil procedure Code, 1908, O. XXII, R. 3(2) — Civil Revision was disposed of by High Court that Civil Judge would decide application for stay order in light of said judgment of Supreme Court, decision of allotment committee and legal position of claim of petitioner/respondents — Impugned order — Death of respondent-party — Appellant moved an application that said respondent had died and his legal representatives were to be appointed — Opposition was that said respondent died during pendency of revision petition before High Court and application had been moved after a period of 4 years — It was further asserted that appellant filed petition for leave to appeal against dead person which could not be filed in Supreme Court — Abetment — Amended rule — Powers of dismissed of suit on account of abatement have been taken away and it has been laid down that if no application is moved for impleading legal representatives, it shall make no difference if the right to sue survives — Held further: It was duty of petitioner and respondent in High Court to file an application for impleading legal representatives of deceased in line of proforma respondents — Fact that said respondent had died during pendency of revision petition in High Court was not brought on record in High Court — Held: It was not fault of appellant — As soon as appellant attained knowledge of death of deceased, he filed an application for arraying his legal representatives as party in line of respondents —  Application accepted. DEATH OF PARTY — (Late impleadment of legal heirs) [Said respondent had since died during proceedings in revision petition before High Court, however, his legal heirs were not brought on record due to want of knowledge. Application for bringing on record legal heirs of the deceased was accepted by Supreme Court in appeal proceedings]. Abdul Shakoor v. M. Rafique 2013 SCR  771 (B)
  210. S. 42 read with Order XLIII Supreme Court Rules, 1978 — Inherent powers — Fundamental Rights — Service of AJ&K — Mangla Dam displaced persons — Quota notification reserved the quota in the service of Azad Jammu and Kashmir only for refugees who migrated from occupied Kashmir and settled in Pakistan — Appellant being a state subject and Mangla Dam displaced person is deprived of the fundamental right of service due to act of Government by issuing quota notification — The Court while exercising inherent powers directed the Government to provide a mechanism for equal protection of rights for the category of state subjects displaced due to construction of Mangla Dam or any other national cause and who are now settled in Pakistan. Imran Ali v. Public Service Commission, AJK through its Secretary, Muzaffarabad 2013 SCR 795 (E)
  211. S. 42 — AJK Protection of Evacuee Property Act, 1950, S.4 — Administration of Evacuee Property Act — Evacuee nature of property — Treatment — Time –barred claim — Main factual and legal proposition related to treating of suit property as an evacuee and claim of appellant that property was their ownership and not evacuee — Facts and pleadings — Conduct of appellant — Documentary evidence — Analysis — In both the said documents of Jamabandis (Exhbt), suit land was shown as evacuee and allotted — Respondents had taken a categorical stand in written statement that said property was treated evacuee at time of establishment of AJK Government — Being evacuee property, was allotted to refuges — Another categoric stand was also taken by respondents that suit was hopelessly time-barred — Under the rules, 60 days’ limitation is prescribed for such application — Appellant-party himself had brought on record a documentary proof which contained entries of allotment of said refugee in years 1965-66 and 1977-78 — Appellant-party remained mum and for the first time they raised controversy through a suit filed on 31.12.1984 — Appellant failed to approach proper forum within a prescribed statutory period — Appellants’ sue claimed had rightly been declared time-barred by subordinate fora — Appellant-party’s conduct also disentitled them for any discretionary relief available under the extraordinary writ —Appellant had failed to point out any misreading of non-reading of evidence in impugned findings recorded by Tribunal of exclusive jurisdiction, hence, same did not call for any interference by Supreme Court — Civil Appeal dismissed. EVACUEE NATURE OF PROPERTY — (Time – barred) Appellant’s claim that the disputed property was not in the nature of evacuee property rather was his personal property, being barred by time was correctly rejected by fora below. Supreme Court dismissed appeal. Raja M. Sarwar v. Custodian of Evacuee Property, AJ&K, Muzaffarabad and 13 others 2013 SCR  816
  212. S. 42 — AJK Rehabilitation Act, 1957, Ss. 43(6), 18-A, 18-B — Dispute about allotment — Features of case — It was claimed that said land was in continuous possession of said respondent who had constructed a tripple story shop thereon — It was also stated that third storey of the building was illegally allotted to appellant — Said allotment was challenged before DRC who accepted the same — Order of DRC was further assailed by appellant before Rehabilitation Commissioner who dismissed the appeal — Said order/judgment of Rehabilitation Commissioner was further challenged through petition before Custodian, who dismissed the same — A review petition filed thereagainst was accepted — Sais order was challenged through writ petition in High Court on chief ground that Custodian was not competent to re-allot same premises after dismissal of the earlier revision petition — High Court accepted writ petition and declared judgment of Custodian as without lawful authority — Impugned order — Whether the order passed by the Custodian while exercising powers of review under Section 12 of AJK Rehabilitation Act, 1956 was reviewable by him or not? — Moot legal point — Remedies — Principles of interpretation of  statutes —  Scheme of law — Under the Act, 1956, there is no express provision to vest the Custodian with the powers of the review — Said Act does not confer any powers of review upon Custodian — Said order passed by Custodian while exercising review powers  vested in him attained finality, therefore, review powers vested under provision of Evacuee Property Act could not be exercised by Custodian in such classified cases — High Court in impugned judgment had rightly held that review petition filed before Custodian against order passed in exercise of review jurisdiction conferred upon him under the Rehabilitation Act, were not competent —- Civil appeal dismissed. ALLOTMENT DISPUTE — (Review power of custodian) Revisional order passed by the Custodian under Rehabilitation Act was not reviewable. Appeal was dismissed by Supreme Court. Mirza Abdul Aziz v. Muhammad Ayub and 2 others  2013 SCR  827 (G)
  213. S. 42 — Specific Relief Act, 1877, S. 42 — Civil Procedure Code, 1908, O. XXIII, R. 1 — Suit for declaration/permanent injunction — Subsequent suit — Appeal in Supreme Court — Whether the provisions of O.23, R. 1, CPC could be attracted to bar a fresh suit when during pendency of a suit, said suit was filed and thereafter previously suit was withdrawn without permission of the said file a fresh one — Principle of law — If a suit is already pending and after filing of subsequent suit, the first suit is withdrawn, in such case, the provision of O. 23, R. 1, CPC, precluding the plaintiff from instituting fresh suit is not applicable — Even otherwise, to non-suit a party is clear penalty and for imposing such penalty, there must be some clear express statutory provision — In absence of any clear statutory provision, a party cannot be non-suited on presumption non-speaking wisdom of the legislature by any stretch of imagination or interpretation of statutes — Civil appeal accepted. WITHDRAWAL OF EARLIER SUIT DURING PENDENCY OF SUBSEQUENT SUIT — (Effect) If a suit is already pending and after filing of subsequent suit, the first suit is withdrawn, the subsequent suit is not barred. Supreme Court allowed appeal. Shabina Kousar v. Nargis Khatoon and 11 others  2013 SCR 866 (B)
  214. S. 42 — Land Acquisition Act, 1894, Ss. 4, 18, 23 — Compensation for acquired land — Determination of market value — No sale-deed was executed in the area 12 months prior to the date of issuance of notification — Proper course for Collector, Land Acquisition, was to consider the sale-deeds in adjacent area — Collector Land Acquisition had done so and considered the sale-deeds in the contiguous and adjoining area — Held:  Collector Land Acquisition had rightly adopted mode of determination of market value of land acquired, as no sale took place in the village from where the land was acquired — Reference Judge failed to award compensation on basis of assessment made by the Collector, Land Acquisition which was correctly assessed by him — All those factors had not been kept in mind by High Court while dismissing appeal — Impugned judgment was set aside — It was ordered the compensation would be passed to land owners according to assessment made by the Collector, Land Acquisition, in the given manner — Order accordingly. COMPENSATION FOR ACQUIRED LAND (Market value) Since no sale took place in the village where land was acquired, Collector Land Acquisition had rightly adopted mode of determination of market value while taking into consideration the land sold in adjacent village. Maqsood Bibi and 6 others v. Collector, Land Acquisition, Mangla Dam Raising Project, Mirpur (Zone-1) and 2 others 2013 SCR (SC AJK) 973 (C)
  215. S. 42 — Specific Relief Act, 1877, S. 42/54 — Limitation Act, 1908, Ss. 28, 144 — Adverse possession — Repeal of law — Effect — Suit on basis of adverse possession filed by plaintiffs/appellants could only be succeeded or decreed if their claim was admitted by respondents/owners in Court — In instant case suit for possession was filed by respondents on 12-08-1992 whereas counter-suit was filed by appellants on the same date i.e. 12-08-1992 for seeking a decree for adverse possession — Evidently suit for adverse possession was filed after repeal of S. 28 of Limitation Act — Suit for adverse possession was not maintainable and decree could not be passed after repeal of said section and if passed, that would be nullity in eyes of law — Held: Suit for grant of a decree on ground of adverse possession was barred by time — High Court had rightly passed a decree for possession in favour of respondents and dismissed suit for adverse possession filed by appellants — Civil Appeal dismissed. ADVERSE POSSESSION — (Repeal of law) After appeal of S. 28 of Limitation Act, no decree for adverse possession could be passed. Supreme Court dismissed appeal. M. Saleem Khan v. M. Fayyaz Khan 2013 SCR 990 (B)
  216. S. 42 — AJK Service Tribunal Act, S.4 — Validity of promotion Notification — Review before competent authority was dismissed —  Service appeal was allowed — Point of limitation — Service Tribunal had not attended question of limitation regarding appeal against said original order — Respondent was fully in picture that departmental authority had not decided her review petition within stipulated period and finally her review petition was rejected — She remained mum for a pretty long time — Appeal before Service Tribunal being time-barred was not maintainable — Impugned judgment/decree of Service Tribunal was set aside by Supreme Court — Civil appeal accepted. SERVICE APPEAL — (Point of limitation) Review against Notification under consideration was dismissed by competent authority. Appeal before Service Tribunal was not maintainable, being barred by time. Impugned judgment of Service Tribunal was set aside by Supreme Court and Civil appeal was allowed. Azad Government of the State of J&K. through its Chief Secretary, Muzaffarabad and another v. Nighat Afza Bukhari, Associate Professor, Govt. Girls College Dadyal, Tehsil Dadyal, District Mirpur and 3 others 2013 SCR 1003
  217. S. 42 — Inheritance mutation — Controversy — Decision/decree of Civil Court — According to findings of Civil Court, appellants due to death of their father in life-time of their grandfather were not entitled to get inheritance of deceased — Same had attained finality — Validity — High Court had rightly observed  in impugned judgment that issues which had been finally resolved by Civil Court and attained finality could not be re-opened — Appellants had failed to point out any illegality in impugned judgment — Civil appeal dismissed. INHERITANCE MUTATION — (Decision of Civil Court) Controversy involved inheritance mutation. Decision of Civil Court had attained finality, the same, therefore, could not be re-agitated. Supreme Court dismissed appeal. M.  Yaseen and 3 others v. Mst. Allah Rakhi and 5 others 2013 SCR 1010
  218. S. 42 — AJK Civil Servants (Appointment, Terms and Conditions of Service) Rules, 1977, R. 13(3) — Officiating promotion — Selection on merit — Controversy — Service Tribunal accepted appeal, set aside order of appointment of appellant and restored promotion order of said respondent — Validity — Officiating promotion does not create any right — Inquiry — Inquiry  report had neither been challenged nor rebutted by said respondent — Same could not be ignored mostly on presumption –After due process, merit list had been prepared  and consequently, according to merit, appellants, appointment order had been issued — Advertisement of post in question had neither been challenged by any body before any forum nor competent authority had brought on record any justification that post was not of direct quota — After selection on merit, through an open competition against advertised post and issuance of appointment order, had created a vested legal right in favour of appellant — Impugned findings of Service Tribunal were neither consistent with statutory provisions nor in accordance with facts of case — Impugned order set aside — Civil appeal allowed. OFFICIATING PROMOTION — (Selection on merit) After selection on merit and issuance of appointment order, vested legal right was created in favour of appellant. ServiceTribunal had erroneously set aside order of appointment in respect of appellant and directed promotion of respondent. Supreme Court allowed appeal. Yasir Maqbool, Junior P.E.T., Govt. Boys High School, Musa Kharian, Muzaffarabad v. Shahid Hameed, P.E.T., Govt. Boys High School Musa Kharian, Muzaffarabad and 5 others 2013 SCR  1015 (B)
  219. S. 42 — Mirpur University of Science and Technology Ordinance, 2008 — Establishment (Recruitments) Statutes, 1983, R. 12 — Regularization of contract appointments — Right of equality before law — High Court dismissed writ petition — Factual/legal perspective — All appellants had been appointed purely on contract basis with condition that their services may be terminated on one month’s notice from either side and in all the other matters services of the appointee shall be governed under the Statute and Rules of the University enforced from time to time — Appellants had failed to refer to any statutory provision in support of his contention for regularization of contract appointment — Constitution had guaranteed the very basic fundamental right of equality before law — In case of appointment against public office, the purpose of equality before law can only be achieved through open transparent competition method of selection on merit — Any person who has been appointed purely on contract basis, cannot as of right claim regularization on permanent basis — Supreme Court repelled the contracts of appellants that as no counter-affidavit has been filed by respondents with the written statement before High Court, thus it would be deemed that whole case of petitioners/appellants had been admitted by respondents both on facts and law — There is no estoppel against law nor mere non-filing of counter-affidavit can be treated as a valid reason to frustrate the spirit of law — Appellant had failed to point out any material illegality or infirmity in impugned judgment of High Court — Civil appeal dismissed. CONTRACT APPOINTMENT — (Regularization) Any person who has been appointed purely on contract basis, cannot as of right claim regularization on permanent basis. Civil appeal was dismissed by Supreme Court. Maj. (Retd.) Majid Hussain, Director Estate, (MUST), Mirpur and 52 others v. Vice–Chancellor, (MUST), Mirpur and 49 others  2013 SCR 1026 (D)
  220. S. 42 — Land Acquisition Act, 1894, Ss. 4, 18, 23, 54 — Enhancement of compensation of acquired land  — Question of competency of direct appeal in Supreme Court — Principle of law — If the High Court on appeal has not varied or set aside the judgment and decree or final order of the Court immediately below, direct appeal is not competent — In instant case, as High Court had concurrent with findings of Reference Judge and appeal had been dismissed, this, direct appeal was not competent — Petition for leave to appeal was to be filed within a period of 60 days — Appellant had neither filed petition for leave to appeal nor had submitted application for treating the appeal as petition for leave to appeal within the prescribed period of limitation — Application had been filed almost upto more than two years’ period — Application for conversion of appeal into petition for leave to appeal or petition for leave to appeal into appeal can only be entertained if same is filed within the prescribed period of limitation — Civil appeal dismissed. DIRECT APPEAL — (Principle of law) In instant case, High Court had concurrent with decision of Court below, therefore, direct appeal was not competent before Supreme Court, Dismissed. Gulzar Hussain v. Azad Government, through its Chief Secretary, Muzaffarabad and others 2013 SCR 1043(B)
  221. S. 42 — Service matter — Controversy related to departmental rules for the post of Khateeb-e-Ala/Senior Khateeb B-17 — Service Tribunal dismissed appeal filed by petitioner on the chief ground that he did not fall within definition of an aggrieved person — Vires of rules —Jurisdiction of Service Tribunal — Moot point — Under the Constitutional provisions and the Civil Servants Act, enabling provisions, the Government is vested with the powers to frame rules regarding the Civil Servants and civil services posts — Thus, it could not be said that rules was made without lawful authority — In instant case, no order had been issued by the authority, adversely affecting the terms and conditions of service of petitioner — Vires of the rules can be challenged only if such rules have been interpreted to the disadvantage of a civil servant adversely affecting terms and conditions of his service — Impugned judgment of Service Tribunal did suffer from any illegality or infirmity — Petition dismissed. VIRES OF DEPARTMENTAL RULES — (Jurisdiction of Service Tribunal) Controversy related to departmental rules for the post of Khateeb-i-Ala/Senior Khateeb B-17. Terms and conditions of petitioner was not affected by any order under the said Rules. Service Tribunal had rightly dismissed appeal. Supreme Court dismissed petition. Qazi Ghulam Sarwar v. Azad Govt., Muzaffarabad and 3  others 2013 SCR 1054
  222. S. 42 — AJK Motor Vehicle Ordinance, 1971, Ss. 48, 49, 50 — Route permit — Issuing authority — High Court while accepting writ petition cancelled route permit in question issued in favour of appellant and said proforma respondents — Impugned judgment — Whether the Minister for Transport was empowered to grant the route permits? — Moot point — Legal/factual perspective — Vide said Notification the government delegated the powers vested in it to the Minister for Transport — While exercising said powers, the Minister is only authorized to order the AJK Transport Authority for introduction of new routes or any number of additional permits for existing route of stage carriage and granting the same to any particular party or parties, but he cannot directly sanction the route permits himself  or under the garb of said notification grant sanction for contract carriage permits — Neither said S. 50 deals with the matter of contract carriage permits nor any powers in relation to contract carriage permits have been granted to the Minister — Said provision deals with the matter of stage carriage permits whereas route permits issued in favour of appellant and performa respondents were not of stage carriage but were of contract carriage — Under said Notification, the powers which had been delegated to the Minister for Transport related to stage carriage, whereas, while misconstruing the powers he had sanctioned contract carriage permits — No illegality in the impugned judgment was found by Supreme Court — Civil appeal dismissed. ROUTE PERMIT — (Competent authority) High Court while accepting writ petition cancelled route permit in question. Supreme Court dismissed appeal. Ch. Allah Ditta v. Muhammad Azeem Bhatti and 15 others 2013 SCR (SC AJ&K) 1092
  223. S. 42 — Limitation Act, 1908, S. 5 — Suit was decreed — Time-barred appeal — Appeal filed by appellant before first Appellate Court was dismissed being filed beyond period of limitation — Knowledge of counsel — Contention that appellant being illiterate woman was personally unable to pursue her case whereas counsel and attorney appointed failed to inform her about decrees of Civil Court — Validity — Impugned judgment was announced in presence of counsel for parties, whereas appeal had been filed before first Appellate Court approximately after a period of 7 months — Even after obtaining certified copies, appeal was not filed for a further time of almost one week — Appellant had failed to mention any plausible jurisdiction in memo of appeal filed before Supreme Court and High Court regarding condonation of delay — Knowledge of counsel is knowledge of the party — Such lame excuse could not be accepted for condonation of delay speaking over months’ time — Conduct of appellant appeared to be indolent — Memo of appeal before first Appellate  Court had been issued in the name of co-proforma respondent — Requirement of appending certified copies with the memo of appeal includes the copies obtained in name of the appellant or through his legally appointed counsel or agent — Even on that score, appeal was liable to be dismissed — Courts below had not committed any illegality or irregularity while dismissing appeal — Civil appeal dismissed. LIMITATION — (Knowledge of counsel) Delay could not be condoned on ground that the respective counsel have not informed the party of the decision of the case. Courts below had rightly dismissed appeals. Supreme Court dismissed civil appeal. Mst. Shamim Akhtar v. M. Shafi and 9 others 2013 SCR 1102 (D)
  224. S. 42 — Admission in Sargodha University Law College at Punjab University Law College, Lahore — Notification issued by the Higher Education Commission — Criteria — Candidates who have obtained at least 50% marks in graduation, are eligible to apply for admission — While criteria for Sargodha University Law College provides that merits of the candidates shall be calculated on the basis of terminal degree B.A/B.Sc. etc. — It further provides that 20 marks for Hafiz-e-Quran will be included wherever applicable — Since none of two candidates i.e. appellant and respondent was Hafiz-e-Quran, said condition was not applicable in these cases — Both the appellant and respondent had passed graduation under semester system, their cases in the light of said Notification issued by HEC was to be governed under the provisions of CGPA system — Appellant had got 3.09, CGPA while said respondent had got 3.05, CGPA, as such, appellant was having a superior CGPA — Held: Appellant was entitled for admission as of his first preference i.e. Punjab University Law College, Lahore — Nomination Board had incorrectly determined criteria for granting admission on basis of percentage of division system which was not applicable in case of respondent and appellant — Writ petition filed in High Court stood accepted — Civil appeal was allowed by Supreme Court. ADMISSION CRITERIA — (CGPA System) Appellant was having a superior CGPA, therefore, he was entitled for admission as of his first preference i.e. Punjab University Law College, Lahore. Supreme Court allowed appeal. Arsallan Habib v. Azad Govt., Muzaffarabad and 5 others 2013 SCR 1110 (B)
  225. S. 42 — Specific Relief Act, 1877, S. 42 — Limitation Act, 1908, Ss. 18, 5 — Civil Procedure Code, 1908, O. VII, R. 11 — Inheritance share — Suit for declaration — Trial Court dismissed suit under O. 7, R. 11, CPC which determination was upheld in First and Second Appeals — Plea of fraud — Point of limitation — Whether said question of law could be resolved without recording evidence — A specific assertion has been made by appellants-plaintiffs at time of filing of suit that they had acquired knowledge about documents which were procured by fraud and concealment of facts four months prior to filing of suit —  Same could not be determined without recording evidence — Said important question of law had been overlooked by all the three Courts below — Civil appeal accepted/case remanded. PLEA OF FRAUD — (Point of limitation) In case of specific plea of fraud, time limit for institution of application and suit shall be computed from the time when the fraud first became known. Supreme Court while allowing appeal remanded case. Noordad and 6 others v. M. Sadiq and 40 others 2013 SCR 1168 (B)
  226. S. 42 — Azad Government of State of Jammu and Kashmir Rules of Business, 1985, R.16 — General Clauses Act, 1897, S. 21 — Principle of locus poenitentiae — Appellant had failed to refer any statutory provision to justify his submission that said notification was without lawful authority — In light of Prime Minister’s observation and approval, the Law Department was also consulted with after through deliberation had given its opinion — Appellant had not challenged proceedings of Selection Board No. 1 — Under the principle of locus poenitentiae, before taking decisive steps, the authority is empowered to rescind, recall or amend its order — Held: Deferment of previous recommendations by Selection Board No. 1 before taking final decisive steps was within purview of principle of locus poenitentiae —Impugned judgment did not call for any interference — Civil appeal dismissed. PROSECUTION — (Validity of notification) Consultation with the Law Department on legal issues is a statutory mode. Dr. Waqar Haider, Heart Specialist, posted at CMH/Sheikh Zaid Hospital, Muzaffarabad v. Azad Govt., Muzaffarabad 2013 SCR  1176 (C)
  227. S. 42 — Specific Relief Act, 1877, S. 42, 12 — Transfer of Property Act, 1882, S. 52 — Agreement to sell — Suit for declaration/specific performance/possession — Courts below granted decree — It was contented that Courts below had wrongly granted declaratory decrees for possession on basis of agreement to sell whereas according to law only a decree for specific performance could be granted — Relief — Principle of lis pendence — During pendency of suit, any transaction of the suit property will not create any right or interest even the party in whose favour such transaction has been made is not necessarily to be impleaded as party — Trial Court had rightly applied principle of lis pendence which was fully attracted in instant case, thus, very foundation on which defendants-appellants had built their defence was legally not available to them — Moreover, it is not prohibited by law that in the suit where plaintiff had claimed more than one remedies and same were proved and also can be granted under law, the Court cannot grant the same — Courts below had recorded concurrent findings on the question of fact — Appellant had made vague assertion of mis-reading and non-reading of evidence — Concurrent findings recorded by Courts below on question of facts could not be disturbed in Second appeal — Respondent-plaintiff had succeeded in establishing that agreement to sell was executed in his favour, thus, according to law, enforcement of agreement was binding upon the parties — Civil appeal dismissed. AGREEMENT TO SELL — (Principle of lis pendens) Courts below had rightly granted specific performance decree on basis of agreement to sell. Appeal was dismissed by Supreme Court. Dilnawaz Begum and another v. Muhammad Akbar Khan Afridi and 4 others 2013 SCR (SC AJ&K) 1184 (C)
  228. S. 42 — Findings of fact — Exercise of writ jurisdiction — Law settled — The findings of facts recorded by a Tribunal of exclusive jurisdiction based on record cannot be disturbed in writ jurisdiction. Waqar Ahmed v. Kh. Mumtaz Ahmed and others 2013 SCR 1202 (A)
  229. S. 42 — Special Relief Act, 1877, S. 42 — Civil Procedure Code, 1908, O.VI, R. 17 — Suit for declaration with consequential relief of permanent injunction — Amendment in plaint at belated stage — Appellant filed an application for bringing an amendment in plaint on ground that during pendency of appeal in High Court respondents had snatched possession from them, thus prayed for amendment in plaint to add in word  — Said application was dismissed by Courts below — Validity — High Court observed in its order that finding of first Appellate Court regarding possession of land revealed that on filing of appeal possession of land was already taken by respondents which showed that on date of filing of appeal before High Court possession of land was with respondents — Application for amendment in plain was moved after lapse of almost three years — Blank permission cannot be granted to a person to file an application for amendment whenever he desires so — Application for amendment is also subject to  law — Fact regarding possession of suit land was well in knowledge of appellants — Amendment can only be allowed which does not change the complexion of the suit and is necessary to reach the just decision of the case — Whereas position in instant case was different — In such state of affairs, allowing application for amendment in plaint would amount to create a new cause of action and complexion of plaint would be changed, which was not warranted under law — Civil appeal dismissed. AMENDMENT IN PLAINT — (Belated stage) To add the word  in suit for declaration application for amendment was filed after three years which stood dismissed. Ghulam Qadir and others v. Satar Din and others 2013 SCR 1218 (B)
  230. Section 42 — jurisdiction of Supreme Court — section 42 confers jurisdiction upon the Supreme Court of AJ&K. Sub-section (2) of section 42, postulates that the Supreme Court shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law subject to the provision of this Act. WAPDA & others v. Taj Begum and others 2014 SCR 588 (B)
  231. Section 42 read with section 4 — the Supreme Court of AJK has to exercise its jurisdiction subject to the provisions of Constitution Act — all the laws whether made by legislative body or enunciated by the Courts are subject to the provisions of Section 4 of the Constitution Act — If any law is inconsistent, takes away or abridges the fundamental rights or is in contravention with the provisions of sub-sections (1) & (2) of section 4 of Constitution Act, by operation of these constitutional provisions is void and is of no legal effect — the provisions  of sub-section (1) & (2) of section 4 of Constitution Act, are very basic  provisions having overriding effect and all the laws have to be interpreted, implemented and enforced according to the spirit of constitutional provisions. Bashir Ahmed Mughal v. Azad Govt. & 6 others 2014 SCR 1258 (II)
  232. Section 42 — Supreme Court Rules, 1978 — Order XLIII, Rules 1 to 5 — No review petition filed against impugned judgment within limitation — application for exercise of inherent powers has been filed beyond the prescribed period of limitation — application dismissed. Mujahid Hussain Naqvi v. Azad Govt. & 2 others 2016 SCR 461 (B) 
  233. —Section 42—binding  nature of the judgment of the Supreme Court—M. Azad Khan v. Wapda department & others 2018 SCR 34 (A)
  234. S. 42-A read with Order XLIII rule 5 AJ&K Supreme Court Rules-Powers of the Supreme Court Rules-Powers of the Supreme Court for doing complete justice-read with inherent powers – If a proper case is made out the Supreme Court can recall an order or to rehear a cause or can treat a judgment as nullity. Mirza Muhammad Aslam v. Dr.Saghir Iqbal 1992 SCR 94 (A)
  235. Section 42-A read with Rule 4 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules — Inherent powers of the Court — Judgment of the High Court runs counter to the law — The Supreme Court in exercise of the inherent powers vested in it under the constitution and rules can check the illegality committed by the subordinate Courts and bring the same in accordance with the laws. Inspector-General Prisons v. Ghulam M. Lolabi & others 2000 SCR 424 (D)
  236. S. 42-A — Powers of the supreme Court — Supreme Court has got wide powers to issue such directions, orders or decrees as may be necessary for doing complete justice — It is laid down in the Constitution that all executive and judicial authorities throughout AJ&K shall act in aid of the Supreme Court — Without permission of the Court no executive authority can pass any order which would be derogatory to the direction of this Court — Observations made by Judges of this Court in the nature of obiter dicta shall be binding upon the Courts and the other executive authorities.AJ&K Govt. & 2 others v. Ch. M. SAEED and 44 others 2002 SCR 378 (A)
  237. S. 42-A — Exemption from payment of income tax — Refund of the sale tax — Judgment rectification of. Ghazi Vegetable Ghee & Oil Mills Limited Mangla Mirpur v. Deputy Commissioner of Income Tax & 3 others 2004 SCR 158 (K)
  238. S. 42-A — Law laid down by this Court, must be followed by all concerned within the boundaries of this State. — If any party has not raised any question of law which goes to the root of the case — Court may allow such point to be raised. Ehtesab Bureau AJK v. M. Hanif 2004 SCR 284 (F)
  239. S. 42-A — Once the Supreme Court arrives at a conclusion on a point of law and issues any direction, all the executive and judicial authorities throughout the Azad Jammu and Kashmir are bound to enforce the same and act in aid of Supreme Court. State through Advocate General v. Hakam Deen & 15 others 2005 SCR 374 (S)
  240. S. 42-A — Exercise of powers vested in Supreme Court — Appellants shall be regularly appointed w. e. f. 24.6.2000 so that their service is counted towards the length of service prescribed for promotion, move over etc. — However, without any monitory benefit for the period between 24.6.2000 to 3.2.2001, and without prejudice to the service rights of others who are not a party before the Court. Ghulam Rasool & another v. Azad Government & others 2006 SCR 376 (B)
  241. S. 42-A read with O. XLIII R. 4, Supreme Court Rules — Inherent powers — Convict-appellant is an absconder — His appeal cannot be heard without surrendering before the authorities — Held: Inherent powers can be exercised for doing complete justice — No injustice appears to have been done — Held further: Appeal is not competent — The question of exercising the inherent powers does not arise. Abdul Majeed v. Maqbool Hussain and another 2009 SCR 220 (C)
  242. Section 42-A — Inherent Powers — It is settled proposition of law that ordinarily the cases are remanded to the High Court or the Court which originally passed judgment and decree to correct, modify or alter the same, but at the same time it has been consistent view that where considerable time has elapsed and another considerable time is apprehended to be consumed, Supreme Court itself decides the controversy on merit and issues appropriate orders — This authority is vested in this Court under its inherent powers but more important is the authority which Supreme Court possesses under section 42-A of the AJ&K Interim Constitution Act, 1974 to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. Muhammad Shafi v. Bashir Ahmed & 6 others 2010 SCR 280 (C)
  243. S. 42-A — AJK Supreme Court Rules, 1978, O.XLVI — Matter of promotion — Tribunal dismissed appeal — Appeal before Supreme Court was also dismissed — Review petition — Which party was senior to the others? — Moot point — Held: All the questions argued before the Court dismissing hearing of the appeal had been attended and answered properly — Petitioner had failed to point out any error apparent on face of impugned judgment — A review petition is competent only if there is a mistake apparent on the face of record or for a reason which is analogous to the apparent mistake — Finding given in an appeal or petition after considering the relevant material on the record, would not justify the review of an order or judgment — Scope of review is very limited — It could not be treated at par with an appeal and the points finally resolved one way or the other, cannot be re-opened — Re-arguing or re-opening of a case like an appeal is not warranted in law — Review petition dismissed. REVIEW — (Power of Supreme Court) Dispute was over promotion. All the questions urged before the Court during hearing of appeal had been attended and answered properly. Supreme Court dismissed review petition. M. Farid Shahzad, Project Manager v. AJK Govt 2013 SCR 346 (B)
  244. Section 42-A — Supreme Court Rules, 1978 — Order XLIII, Rules 5 & 6 — inherent powers — exercise of — writ dismissed in limini — appeal against — important legal questions involved in writ — After reaching this conclusion that writ should have been admitted for regular hearing, then the proper course is remand  to High Court for decision but held: pure legal questions which need no inquiry into the facts, are involved in this case, which can easily be resolved  in the light of available record. The Court has got inherent powers to pass any order to meet the ends of justice, instead of remanding the case to the High Court. Saadia Shamshad & 2 others v. The Secretary Education & 3 others 2016 SCR 80 (C) 1997 SCR 367 & 2000 SCR 331 rel.
  245. Section 42-A — Supreme Court Rules, 1978 — Rules 5 & 6 — inherent powers — exercise of — objection — appeal filed by the Collector Land Acquisition without sanction of law deptt. is not maintainable —  observed: all proceedings taken by the Reference Judge have been conducted against the clear statutory provisions — decree has been passed against the Azad Govt., without summoning — it is a fit case where this Court may exercise inherent powers vested in it for doing the complete justice without appeal by the Govt. Collector land acquisition v. Qamar Abbas Rizvi & 4 others 2016 SCR 114 (D)
  246. Section 42-A — issue and execution of processes of Supreme Court — It may be observed here that under the Constitutional provision, the judgment of this Court is binding upon each and every organ of the State and no deviation can be made from it irrespective of the fact that the Authority is President or the Prime Minister of the State. The pronouncement of the Supreme Court on a point of law is the law declared, and unless it is altered or overruled by the Supreme Court itself, there is no option left with all the executive and judicial authorities including the President and the Prime Minister except to implement the same. It may also be observed here that it cannot be allowed to erode or nullify the judgment of this Court through executive or administrative instrument. In this regard, the Constitutional provision, i.e., section 42-A, of the Act, 1974 is comprehensive in nature and self-supplementary which need not to be supported by any authority. Azad Govt. & 4 others v. Sardar Javed Naz & 2 others 2016 SCR 400 (N) 2014 SCMR 1457 rel
  247. Section 42-A — violation of judgment of Supreme Court — effect — Under the Constitutional provision, the judgment of the Supreme Court is binding upon each and every organ of the State and no deviation can be made from it. The pronouncement of the Supreme Court on a point of law is the law declared — unless it is altered or overruled by the Supreme Court itself, there is no option left with all the executive and judicial authorities including the president and the Prime Minister except to implement the same. V.C. University of AJ&K & others v. Prof.Dr. Mirza Shahid Baig & another 2016 SCR 1111 (A) PLD 2016 SC (AJ&K) 1 rel.
  248. دفعہA-42 — حکمXLIII، آزاد جموں و کشمیر سپریم کورٹ رولز 1978 — حکم VII قاعدہ 26، حکم VIIIقاعدہ 13 و حکم XII قواعد 3، 4، 11مجموعہ ضابطہ دیوانی —  احکامات فراہمی فہرست ہا قائمقامان مدعی و مدعاعلیہ ہمراہ دعویٰ و جواب دعویٰ —احکامات بنسبت تقرری قائمقامان مدعی/مدعاعلیہ/رسپانڈنٹ —نامزدگی اطلاع دہندہ بصورت وفات مدعی/مدعاعلیہ — عدم عملدرآمد باعث تاخیر تصفیہ مقدمہ جات—تمام عدالت ہا ماتحت کو سختی سے عملدرآمد کرنے اور عدالت العالیہ کو زیر بحث بالا احکامات مجموعہ ضابطہ دیوانی پر سختی سےعملدرآمد کرنے کی ہدایت ازروئے آئین کے تحت حاصل اختیارات جاری کی گئی۔ اسد وغیرہ  بنام زاہدہ بیگم وغیرہ(ج)2016 SCR 1522
  249. دفعہ A-42— حکمXLIII    — آزاد جموں و کشمیر سپریم کورٹ رولز 1978— آئین کے تحت حاصل شدہ اختیارات بروئے کار — بوجوہ تفتیش و چالان میں انتہائی تاخیر— قرار دیا گیا — اگر مستغیث/ مضروبہ کی جانب سے استغاثہ دائر کیا جائے تو رپورٹ طبی عدالتی کارروائی کا حصہ بنائی جا سکتی ہے— جیسا کہ ہم پہلے بھی ذکر کر چکے ہیں کہ تعزیراتی جرائم کی تفتیش کے سلسلہ میں پہلے ہی تقریباً 8 سال کا عرصہ صرف ہو چکا ہے۔ ہماری نظر میں اب دوبارہ فریقین کو ازسرنو تفتیش اور چالان کے تکلیف دہ عمل سے گزارنے سے کوئی مثبت نتائج حاصل نہیں ہو سکتے اور نہ ہی انصاف کے تقاضے پورے ہو سکتے ہیں۔ ایسے حالات میں آئین کے تحت حاصل شدہ خصوصی اختیارات کو بروئے کار لاتے ہوئے یہ قرار دیا جاتا ہے کہ اگر سائل وقوعہ کی نسبت استغاثہ دائر عدالت کرے تو تفتیش میں حاصل کی گئی مضروبی رپورٹ کو عدالت ماتحت استغاثہ کا حصہ بنا سکتی ہے اور استغاثہ پر تحت قانون کارروائی کرتے ہوئے معاملہ کو یکسو کرنے کی ہدایت جاری کی جاتی ہے۔محمد اکرم خان بنام محمد محبوب وغیرہ  (ت) 2016 SCR 1516
  250. —Section 42-A—AJ&K Civil Servant Act, 1976—section 22—exercise of inherent powers— request for direction to the Government to consider the case under section 22 of Act, 1976—held: although the appeal before the Service Tribunal is not maintainable, however, the authority or the Government is not debarred to deal with the case while exercising powers vested u/s 22 of the Act, 1976, and remove the mischief of discrimination, if the facts and circumstances demands so— The Court while exercising the powers vested in it u/s 42-A of Act, 1974, deem it appropriate to observe for doing complete justice that the authority or Government is at liberty to consider the case of the appellant u/ s 22 of Act, 1976 and if her version of discrimination is found correct, then while exercising powers vested in the Government the wrong may be redressed for just and equitable purpose. Khalida Shaheen v. Azad Govt. & others  2017 SCR 1294 (B)
  251. —Art. 42-A—inherent jurisdiction—the Constitution has vested the Supreme Court with the inherent powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. Chaudhary Muhammad  Saeed V. Haji Javed Akram 2020 SCR 617 (A)
  252. Ss. 42-A & 45 — Executive authorities cannot exercise their authority in such a manner which may amount to infringe, impair or curtail any of the right granted by the Judges of this Court — Any executive authority having any doubt about any direction or decision taken by the Court could get the same resolved by submitting a review petition — It cannot bypass a direction or order of this Court which may attract the invocation of S.45 of the Constitution Act. AJ&K GOVERNMENT and 2 others Ch. MUHAMMAD SAEED and 44 others 2002 SCR 378 (C)
  253. —Article 42-A—Order XLIII, AJK Supreme Court Rules, 1978—Inherent Powers of the Supreme Court—ex-parte decrees for maintenance allowance as well as he dissolution of marriage on basis of non-payment of maintenance allowance passed–application for setting aside ex-parte decrees dismissed on ground of limitation—upheld up to the Supreme Court—Held: this Court has ample power to pass any judgment and decree under inherent powers available under Article 42-A of Azad Jammu & Kashmir Interim Constitution 1974 read with order XLIII of AJK Supreme Court Rules 1978. While exercising these powers, the judgment and decree passed to the extent of maintenance allowance is hereby recalled and the application is dismissed for the reason that the decree for dissolution of marriage has been passed on the ground of non-maintenance, therefore, grant of maintenance was not justified. Muhammad Haleem Khan v. Gul Shereen Akhtar  2020 SCR 827 (A)
  254. —Section 42- A —de-novo inquiry after final judgment of the Supreme Court— argument that appeal was decided on technical ground, thus, on merits the matter shall be deemed left upon the discretion of the authority, appears to be misconceived— on merits the Court fully concurred with the findings recorded by the Service Tribunal, which is unambiguous and speaking one—the judgment of the Service Tribunal was upheld and maintained in toto—Held:  the executive authorities are left with no option to exercise their powers—If at all, there was any such eventuality they should have approached the Court. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (E) 2002 SCR 378 ref.
  255. —Section 42-A—Judgment of the   Supreme Court—binding on High Court—and each other organ of the State—no deviation can be made—unless the same is altered or overruled by this Court—Under section 42-A, of the Act, 1974, the law laid down by this Court is binding upon each and every organ of the State and no deviation from the law laid down by this Court can be made unless the same is altered or overruled by this Court itself. Thus the judgment of the High Court in Iqra Sajjad’s case being inconsistent with the dictum laid down by this  Court in Jawaria Maqsood’s and Hammad Mushtaq Janjua’s cases is inoperative and the directions issued in that judgment are not binding upon the concerned authorities. Umair Khan v. AJ&K Government & others 2017 SCR 980 (C)
  256. —Section 42-A, read with Order, XLIII, Rule 5 of the AJ &K Supreme Court Rules 1978—recalling of an order or rehear a case or treating a judgment as nullity—Held: this Court under the above-referred provisions of the constitution and the rules, can recall an order or rehear a case or can treat a judgment as nullity. Azad Government & 2 others v. Abdul Hameed & 15 others 2017 SCR 1034 (C) 2002 SCR 292 & 2000 SCR 424 rel.
  257. —Section 42-A, read with Order, XLIII, Rule 5 of the AJ&K Supreme Court Rules 1978—Inherent power—exercising of—in favour of a negligent party—and against an order which has been passed in utter disregard of law—scope of—Held: the inherent powers cannot be exercised in favour of a party, who slept over his right and has not prosecuted its case with due diligence and care. Further held: that the order under challenge has been passed in utter disregard of the law, we are constrained to issue a direction under section 42-A of the AJ&K Interim Constitution Act, 1974 read with Order XLIII, Rule 5 of the AJ& K Supreme Court Rules, 1978 in the terms that award of 15% profit in a suit for compensation is illegal and against the law, because at the time of filing suit, under the provisions of Section 28 of the Land Acquisition Act, the interest at the rate of 6% per annum could be allowed. Azad Government & 2 others v. Abdul Hameed & 15 others 2017 SCR 1034 (D)
  258. — Section 42-A—Inherent jurisdiction—establishment of Monitoring Cell—an illegal assumption of power under pretext of section 42-A—not only un-constitutional but also against the whole legal framework of the laws enforced— The Supreme Court /Chief Justice is not authorized by the Constitution or any other law to constitute a parallel body— Monitoring Cell a mysterious limitless body. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (V)  
  259. —Section 42-A, Section 46 and 47—IPL—Section 25—jurisdiction conferred on the Supreme Court—inherent  jurisdiction—establishment of Monitoring Cell—its status—illegal—unconstitutional—Held: only appellate, advisory jurisdiction is conferred upon the Supreme Court of AJK by the Act and the other laws enforced in the territory of Azad Jammu and Kashmir such as the appeal u/s 25 IPL , appeal by leave u/s 47 of Act, etc.— Section 46 of the Act is a compositeSection, which deals with the jurisdiction of the Courts and postulates that besides, the Supreme Court and the High Court, some other Courts can be established by law— By establishing ‘Monitoring Cell’ a parallel system has been introduced —Held: Any Notification which is lacking constitutional or statutory backing is a nullity in the eye of law and acts performed, jurisdiction exercised on the basis of such illegal notification is a deliberate misuse of the authority and serious violation of law, amounting to gross misconduct. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (DD)      PLD 1980 Kar. 166, ref
  260. —section 42-A—inherent powers—exercise of —long delay in disposal by Service Tribunal —miscarriage of justice—remand not fruitful—exercise  of inherent powers for doing complete justice— [the] state of affairs demands for exercise of constitutional inherent powers vested in this Court for doing complete justice to avoid technicalities and decide the matters conclusively so that the very purpose may not be defeated. It is admitted position that the appellant is an employee having more than two decade’s service in his credit. The sole allegation levelled against him in the charge sheet is of being habitual absentee from duty. The appellant has explained the allegation and also submitted that he has availed leave sanctioned by the competent authority. He remained present but due to enmity and conspiracy of some other official has wrongly been shown absent in the official record. He also explained that for some days, he could not join the duty due to illness of his mother and he submitted an application to the concerned authority i.e., Admin Officer. Tahir Javaid v. Deputy Custodian & others 2017 SCR 293 (C)
  261. —Section 42-A—Inherent jurisdiction/original jurisdiction—scope of—Held: Supreme Court only the appellate court and does not possess original jurisdiction, hence no matter can be entertained by the Supreme Court in its original jurisdiction, which is a negation and transgression of the Constitution.             The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (G)  PLD 1986 SC (AJ&K) 63, PLD 1988 SC (AJ&K) 53 rel. 
  262. — article 42-A — Inherent Powers of the Supreme Court, to do complete justice. Various directions issued by the Supreme Court — While taking into consideration the overall state of law relating to State Subject Certificate and Domicile applicable in the Azad Government of the State of Jammu and Kashmir, we are of the view that the procedures relating to the grant of State Subject Certificate and Domicile are on the one hand vague and on the other having inherent defects. We therefore are constrained to invoke the inherent powers vested to this Hon’ble Court under Article 42-A of AJK Interim Constitution Act 1974 in order to do complete justice and issue direction to Azad Government of the State of Jammu & Kashmir and for making suitable amendments in the law referred hereinabove; particularly, for providing the procedure with regard to the grant of State Subject Certificate and the grant of Domicile Certificate in favour of the State Subjects either residing in the territory of the Azad Jammu and Kashmir including the refugees of Jammu & Kashmir settled in Azad Jammu & Kashmir territory or the refugees of Jammu & Kashmir settled in Pakistan in the following manner:-
  263. The matters provided in the Circulars issued by the Board of Revenue dated 25.10.2003, 27.01.2014, 09.01.1998 and the matter provided in Notification dated 07.09.2001, 25.08.1997 shall be incorporated and made part of the Azad Jammu and Kashmir State Subject Rules 1980 in suitable manners.
  264. No State Subject Certificate or Domicile shall be granted in favour of any person having the status of refugees settled in Azad Jammu and Kashmir or refugees settled in Pakistan, unless the applicant does not provide the proof relating to his ancestral immovable property in any part of the State of Jammu and Kashmir to which the applicant claims his or her permanent residence. In order to obtain the certified copy with regard to the revenue record owned by such person situated in any part of occupied part of the State of Jammu and Kashmir, the procedure provided in Article 96 of Qanoon-e-Shadat Order 1984 as adopted in Azad Jammu and Kashmir shall be followed.
  265. Any document issued by any statutory authority in favour of refugees while entering into the territory of Azad Jammu and Kashmir or territory of Pakistan shall also be taken into consideration.
  266. While granting Domicile Certificate, all the prerequisites mentioned in Notification dated 25th August 1997 shall be fulfilled and all the prerequisites mentioned in Notification dated 25th August 1997 shall be made part of the Rules for the purpose of granting Domicile Certificate.
  267. Powers relating to Appeal, Review or Revision under Section 10 of the Act shall be exercised by a committee consisting of at least 3 persons and the Chairman of the committee shall be a person having judicial experience of the status of District and Session Judge who is qualified to be the Judge of the High Court. The period for decision of any Appeal, Review or Revision shall be specified which shall not be more than 03 months.
  268. Any matter with regard to grant or refusal of State Subject Certificate or Domicile Certificate shall be decided not more than a period of 06 months.
  269. While granting a State Subject Certificate or Domicile Certificate, the officer granting the State Subject Certificate or Domicile Certificate shall append a certificate at the foot of the proceedings certifying the observance of the procedure relating to the grant of State Subject Certificate or Domicile Certificate.
  270. A penalty shall also be provided to be inflicted upon the officer granting the State Subject Certificate or Domicile Certificate in case at any stage it is proved that the officer concerned did not adopted all reasonable means and that the certificate was not issued by ensuring that no fraud, false representation or concealment of any material fact was made.
  271. A Comprehensive procedure shall be provided for prosecution of a person, along with providing a penalty of punishment not less than 3 years, who obtained a State Subject Certificate by means of fraud, false representation or the concealment of any material fact or the persons who assist any such person in obtaining a State Subject Certificate or Domicile Certificate on the basis of fraud, false representation or the concealment of the material fact. Sabeel Ahmed Chohan v. Iftikhar-ul-Hassan & others 2023 SCR 303 (OO)
  272.                          
  273. —Arts. 42-A, 42-B, 43(2-A) and 44—appointment of Judges of the High Court—challenge to—writ—consultative process—principle of law laid down by Supreme Court to be followed—due to repeated deviations, made by the appointing authority from the settled law, the institution of Judiciary as well as public at large is being suffered—such practice must be avoided otherwise law will take its own course—the principle of law enunciated by the Supreme  Court is binding on each and every organ of the State and no deviation can be made from it irrespective of the fact that the Authority is President or the Prime Minister or any other State subject. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (M)
  274. —Sections 42, 42-A, Constitution of Islamic Republic of Pakistan, 1973, Article 187— inherent powers of Supreme Court—Section 42-A and Article 187  are the supplementary provisions — enlarging the scope of doing complete justice in a case pending before the court in its regular appellate jurisdiction— These do not confer or create any new ‘jurisdiction—Held: Powers under section 42-A can be exercised within the realm of jurisdiction conferred on this court by Section 42-(11) and (12). The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (F)                                
  275. —Sections 42, 42-A and Section 46-A—Jurisdiction conferred on the Supreme Court—Inherent  jurisdiction—can only exercised in pending case— The Supreme Court of Azad Jammu and Kashmir is creation of the Act— it shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law—the Supreme Court is vested with the jurisdiction to hear appeals from the judgments, decrees, final orders or sentences in the manner contemplated under subsections (10) to (12)— The Act further confers advisory jurisdiction on the Supreme Court— under section 46-A— Section 42-A of the Act, does not confer an original or appellate jurisdiction on the Supreme Court of AJK rather empowers the Court to issue such directions, orders or decrees, as may be necessary for doing complete justice in any cause or matter pending before it including the order for the purpose of securing the attendance of any person or discovery or production of any document—Held: This power has been given to the Supreme Court only in the pending cases. By no stretch of imagination, this provision can be invoked for exercising the original or appellate jurisdiction. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (Z)                                             
  276. —Article 42-A—exercise of inherent powers—scope of–the Supreme Court may exercise such powers in “any case or matter pending”—the words ‘case’ or ‘matter’ are of vital importance—the term case relates to the matter involved in the appeals, petitions etc. or any lis requiring action—The term ‘matter’ is of more wider connotation which includes the other incidental an ancillary matters arisen in any proceeding or matter under consideration of Court— M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1 (D & E) 2005 PcrLJ 1988 & 1983 CLC 113 Ref
  277. —Article 42-A—Inherent powers of the Supreme Court— held: powers being inherent are complementary to those which are specifically conferred upon the Court by the Constitution. These powers remain undefined so that the Court can cater to any situation and could even mould the relief. Kamran Zaib v. Khadim Hussain & others  2022 SCR 1114 (B)
  278. —Article 42-A—inherent powers of the Supreme Court— scope of—principle—Held: these powers should not be misconstrued which means to pass any order which is against the objectives of law or against specific Constitutional provisions. The rational appears to be that the situations which cannot be resolved by applying direct provisions of law and warrant an intervention by the Court, it may pass an order to ensure complete justice. This can also be used where the Court finds a gap in legislation and solution is required till the legislature acts and covers the field. Kamran Zaib v. Khadim Hussain & others  2022 SCR 1114 (C) —Article 42-A—Inherent powers of the Supreme Court— powers and scope—Held: the Supreme Court being an apex Court of Judicial hierarchy with extraordinary jurisdiction can issue such directions, orders or decree as may be necessary for doing complete justice and is also competent to mould the relief in order to secure the cause of justice. Kamran Zaib v. Khadim Hussain & others  2022 SCR 1114 (D) 2001 SCMR 190 & 2004 SCMR 1934 rel.
  279. — Article 42-A — Supreme Court Rules, 1978 — Order XLIII — inherent powers — exercise of — Death Assistance Package — Notification dated 31.03.2020 — ultra vires — held: Notification dated 31.03.2020 to the extent of employment of civil servants on contract/permanent basis without adopting due process of law directly offends the constitutional provisions and enforced law — notification not specifically challenged, therefore, the Court while exercising inherent powers conferred upon it, struck down the notification dated 31.03.2020 to the extent of contract/permanent employment. Muhammad Safdar Mir vs Syed Adil Hussain Naqvi & others 2024 SCR 214(D) —Article 42-A—Order XLIII, rule 5 of the AJ&K Supreme Court Rules, 1978 — Inherent powers of the Supreme Court—scope and exercise of—procedural objection raised regarding maintainability of appeal on ground same being filed without legal sanction of the Law Department— rules should not be interpreted to restrict the Court’s inherent powers to issue orders essential for justice or to prevent the abuse of the Court’s process —Held: when a clear violation of law or miscarriage of justice is found apparent, the Court deems it necessary and appropriate to invoke the inherent powers vested under Article 42-A of the Azad Jammu and Kashmir Interim Constitution, 1974, in conjunction with Order XLIII, Rule 5 of the AJ&K Supreme Court Rules, 1978. This provision provides that the rules should not be interpreted to restrict the Court’s inherent powers to issue orders essential for justice or to prevent the abuse of the Court’s process, therefore, this Court retains the authority to interfere when necessary to uphold the principle of justice and fairness even in cases where procedural objections raised. This perspective is consistent with the precedent established in the case of “Basharat vs. Sagheer.” Further held: Upon careful examination of the case record, the impugned judgment of the High Court appears to have been rendered in violation of the settled principle of law and facts, therefore, in the exercise of the inherent powers vested in this Court, we intend to decide the appeal on merits. Dept. of Higher Education & 2 others vs Said Ahmed Khan & others 2024 SCR410 (A)
  280. —Section 42-A, 44 and 46—Inherent jurisdiction—establishment of Monitoring Cell—unconstitutional—performance of duties beyond judicial duty—misconduct—Held:  it is the prerogative and power of the Government to establish courts and determine their jurisdiction under section 46 — By creating Monitoring Cell, the jurisdiction conferred on the High Court under section 44 of the Act, has been curtailed, indirectly which was serious violation of sections 42-A & 46 of the Constitution Act. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (EE)                     
  281. —Ss. 42-A & 42-B—de-novo inquiry after final judgment of Supreme Court— U/s 42-A the Supreme Court is empowered to issue direction, orders etc. as may be necessary for doing complete justice — All executive and judicial authorities throughout AJ&K shall act in aid of the Supreme Court— U/s 42-B any decision of the Supreme Court to the extent that it decides a question of law or is based upon or enunciates a principle of law, is binding on all other Courts— the argument that the authority is competent to hold de-novo inquiry as according to the body of the judgment this Court has only decided the appeal on the point of competency of authority, thus, it shall be deemed that the appeal has not been decided—held: the matter which is brought before the Court is infact taken out of the hands of the authority and the authority is left with no option to exercise the powers as the same is subject to the decision of the Court —Further held: after final judgment of the apex Court, the  holding of de-novo inquiry without permission of the Court relating to the same matter is not valid—Further held: the fresh inquiry can only be held if the Court directs so or deems it necessary. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (A,B&C)
  282. —Ss. 42- A & 42-B—de-novo inquiry—It is settled law that the matter which has been finally decided by the apex Court, the option does not lie with the authority to initiate de-novo inquiry or reopen the matter unless the Court directs so. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (D)
  283. —Ss. 42- A & 42-B —de-novo inquiry after final judgment of the Supreme Court—review petition— final authoritative part of the judgment neither challenged nor any objection raised —on merits no objection in review was raised, thus, the findings recorded by the Service Tribunal merged into the final judgment of this Court and attained the finality— In view of the findings of the Service Tribunal in the judgment dated 27.08.2013 the authority failed to prove the alleged allegations ,thus, held: the holding of de-novo inquiry on the basis of same list of allegations of which the respondent had already been acquitted is against law and amounts to nullify and neutralize the judgment of apex Court. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (F)
  284. —Ss. 42- A & 42-B—binding nature of the judgment of Supreme Court—concept of administration of justice—de-novo proceedings by the Executive Authority after final judgment of the Supreme Court—Held: — If the practice of interpretation of judgment by any authority or party is allowed then there will be no finality to the judgment of apex Court— such practice will be disastrous and dangerous according to its far-reaching effects—    neither such like practice can be allowed nor is consistent with the spirit of the Constitution and law— this, in fact, amounts to total negation of the concept of the administration of justice—Held: after final judgment of this Court re-opening of matter by any authority/party finds no place in the system of administration of justice rather it amounts to negation and frustration of justice. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (I)
  285. —Ss. 42- A & 42-B—Held: according to the constitutional provisions after the final judgment of this Court, the law does not authorize any authority to deal with the matter against the spirit of the judgment. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (K)  2014 SCMR 1457 & 2000 SCR 97 rel.
  286. —Ss. 42- A & 42-B—the nullification of Courts judgments through legislation held against the spirit of constitution. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (L)  2013 SCMR 1752 & 2008 SCR 417 ref.
  287. —Ss. 42-A, 42-B, 45 and 47—matters of terms & conditions of service—jurisdiction of Service Tribunal and High Court, lucidly demarcated and determined in a number of cases since GhiasulHaq’s case [PLD 1980 SC(AJ&K) 5] to Ejaz Awan’s case (supra) but High Court not followed—according to theconstitutional provisions, the principle of law enunciated by this Court has binding force on all the subordinate Courts and all the judicial and executive authorities have to act in aid of Supreme Court and not by raiding on it—Held: such intentional and deliberate practice not only amounts to violate the constitutional provisions but is also against the judicial conduct— repeatedly this Court has held that the matters involving the terms and conditions of service could not be entertained by the High Court but despite this continuously entertaining the writ petitions relating to terms and conditions of service and issuing interim injunction has not only created hardships but it is also a violation of constitutional  provisions calling for initiation of action u/Ss. 42-B and 45 of Act, 1974—For enforcement of constitutional provisions and judgments of the Supreme Court, the Court while taking notice of such practice directed to send a copy of judgment (instant) to the Registrar High Court to apprise the learned Chief Justice and the Judges of the High Court. Tahir Farooq vs Dr. Muhammad Qasim & others 2018 SCR 86 (G)
  288. —Article 42-A (1) —Order XLIII, Supreme Court Rules, 1978—inherent powers of the Supreme Court—various direct appeals and PLAs have been filed after enforcement of the AJ&K Shariat Appellate Bench of the High Court Act, 2017, therefore, while exercising inherent powers conferred upon this Court under Article 42-A (1) and read with Order XLIII of the Supreme Court Rules, 1978—Held: that all those appeals and PLAs, as the case may be, would be deemed to have been filed validly Muhammad Ajmal Qureshi vs Nazia Bibi & others 2018 SCR 1179 (G)
  289. —Ss.42-A & 42-B—denovo inquiry—proposition of—This Court decided and dismissed the appeal solely on the ground of initiation of inquiry proceedings on jurisdictional competence and other merits of the case have not been touched—this is correct that this Court has not issued any direction for denovo proceedings but the quashment of proceedings as well as award of penalty does not absolve the respondent form misconduct allegedly committed by him—Held: the authority cannot be stopped from proceedings further as the same is prerogative of the authority—Law is settled that when the disciplinary proceedings and the punishment awarded in furtherance thereof are quashed for technical reasons then the denovo proceedings can be taken by the authority notwithstanding the fact that any direction was issued by the Court or not. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (S)  AIR 1962 SC 1334, AIR 1979 SC 1923, 1981 PLC (CS) 123 & 1996 SCR 127 Rel.
  290. —S. 42-B—Held: that a clear, unambiguous and binding judgment of this Court has to be operated and if any of the concerned deems that according to his version there is any ambiguity or clarification is required, he has to approach the Court for the interpretation of the judgment. Chairman AJK Council v. Muhammad Munir Raja & others  2017 SCR 1168 (G)
  291. —section 42-B—judgment/order of the Supreme Court binding on all Courts of law in AJK— Service Tribunal cannot violate the pronouncement of Supreme Court—especially when the seniority list issued in accordance with the law laid down by this Court—Under section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974, any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciate a principle of law, be binding on all the Courts in the Azad Jammu and Kashmir.  The learned Service Tribunal, therefore, cannot violate and bypass the pronouncements mentioned hereinabove especially so when the impugned seniority list issued in accordance with law laid down by this Court.   Musa Jan & others v. Arbab Shaheen & others 2017 SCR 1586 (B)
  292. —section 42-B—Decision of the Supreme Court binding on all other Courts—the Supreme Court is the apex judicial forum of the State and it has to interpret the law while hearing appeals from the judgments of the High Court and the subordinate judiciary. It is the foremost duty as well as prerogative of the Supreme Court to interpret the law in consistent and organized manner to avoid legal uncertainty, the law declared by the Supreme Court is binding on all the organs of State, which are bound to follow the same and the subordinate Courts are always required to give utmost respect, regard and consideration to the judgment, in which the principle of law has been enunciated. Under section 42-B of the AJ&K Interim Constitution Act, 1974, every decision of the Supreme Court shall be binding on all the Courts in Azad Jammu and Kashmir, if a question of law is decided or the decision is based on the principles of law or its enunciates a principle of law. Muhammad Sajjad Khan vs Abdul Qadoos Khan & others 2018 SCR 216 (E) 2016 SCR 1359 rel
  293. —Section 42-A (3) —issue and execution of process of Supreme Court—all executive and judicial authorities shall act in aid of the Supreme Court—a literal perusal of section 42-A (3) of the AJ&K Interim Constitution Act, 1974, depicts that not only the executive authorities of AJ&K but the judicial authorities are also bound to act in aid of the Supreme Court. Muhammad Sajjad Khan vs Abdul Qadoos Khan & others 2018 SCR 216 (F) 2003 SCR 155 rel
  294. —section 42-A(3) and section 42-B—judicial authorities not only bound to follow the judgments of the Supreme Court but also to act in aid it. Muhammad Sajjad Khan vs Abdul Qadoos Khan & others 2018 SCR 216 (G)
  295. —Section 42-A— Order XLIII, AJK Supreme Court Rules, 1978—-Inherent Jurisdiction of the Supreme court—writ dismissed in limine—instead of remanding the case, as sufficient material available on record—Supreme Court dispensed with rules 32 to 38 of the High Court Procedure Rules, 1984, accepted the writ petitions in circumstances— issued direction for appointment of the appellants—we have reached the conclusion that both the appellants have succeeded to prove their respective claim but the learned High Court despite the fact that sufficient material in shape of averments was available on record to justify the admission of the writ petitions for regular hearing, dismissed the same in limine. As point of view of both the parties has already been brought on record; therefore, keeping in view of the circumstances of the instant appeals, in our estimation, the remand would be a futile exercise. We are conscious that under the provisions of Azad Jammu and Kashmir High Court Procedure Rules, 1984 without admitting the writ petition for regular hearing and complying with the provisions of Rules 32 to 38, the writ cannot be issued, therefore, in the interest of justice while exercising the inherent powers conferred upon this Court under the provisions of section 42-A of the Interim Constitution Act, 1974, read with Order XLIII of the Supreme Court Rules, 1978, the writ petitions filed by the appellants, herein before the High Court are admitted for regular hearing and while dispensing with the parties from the compliance of Rules, 32 to 38 of the High Court Procedure Rules, as has been concluded hereinabove that the appellants have succeeded to prove their claim, the writ petitions are accepted and the official respondents are directed to make the appointments of the appellants immediately and submit the compliance report before this Court through Registrar. Mrs. Ghulam Aisha Abbasi vs University of AJ&K & others 2018 SCR 606 (A)
  296. —Section 42-A—O. XLIII, R 5, of the AJ&K Supreme Court Rules, 1978— Powers of the Supreme Court to issue such directions, order or decrees as may be necessary for doing complete justice— Held: under Section 42-A of the Azad Jammu Kashmir Interim Constitution Act, 1974 read with Order XLIII, rule 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, this Court is competent to pass any order to rehear the case or treat the same as nullity. It would be in the interest of justice to pass an order for saving the parties from agony of un-necessary litigation. Muhammad Sabir vs Muhammad Tufail & others 2018 SCR 794 (C) 2017 SCR 1034, 2013 SCR 56, 2000 SCR 424, 1984 CLC 309 rel
  297. Section 42- A (1) read with order XLIII, Rule 4 of the AJ&K Supreme Court Rules, 1978 — Review petition dismissed on the ground that it was not competently filed, however, from the perusal of the impugned judgment and record — it transpired — that the fact brought in the review petition overlooked by this Court while handing down the judgment, is an error apparent on the face of the judgment, which is pre-requisite for review of the judgment.  Held: For the ends of justice, it is a case for exercising powers vested in this Court under the provisions of section 42-A(1) of the AJ&K Interim Constitution Act, 1974 read with order XLIII, Rule 4 of the AJ&K Supreme Court Rules, 1978. Therefore, while doing complete justice by exercising such powers the words have been substituted as prayed for by the petitioner in the review petition. Muhammad Sabeel v. Muhammad Ayoub Khan& others 2015 SCR 1464 (C)
  298. Section 42-A(1) — Inherent powers — Which matter or case can be treated to be pending before the Court — Only that matter or case can be treated to be pending before the Court which has come up before the Court in pursuance of the mode recognized by the Constitution or an Act of the legislature — In the instant case, when it is admitted that the review petition was not competent, it would be paradoxical to argue that the inherent powers can be invoked merely because an incompetent review petition was filed — If we accept this contention then it would follow that an aggrieved person may seek a remedy by filing an appeal, revision or review which is not permitted by law and thereafter can argue that although the mode adopted by him was not permissible under law yet he can be given relief under inherent powers, because an illegal mode adopted by him had satisfied the condition precedent for exercising the inherent powers — This would tantamount to misuse the process of the Court and cannot be regarded as a compliance of section 42-A (1) of the Interim Constitution Act — When the appeal of the convict is finally disposed of and the review petition is not competent under law then the Court is ‘functus officio’. Misri v. State 1999 SCR 373 (A)
  299. S. 42-A(1) — the basic object of this provision of law is that complete justice should be done to every person — The view that if any question has been erroneously or illegally decided the same could not be made a ground for review amounts to negation of justice — Vast powers have been given to this Court for doing complete justice — It is the normal duty of this Court to ensure that complete justice is being done to every one and no injustice should be done merely on the basis of technicalities. Mujahid Hussain Naqvi  v. Azad Govt. & Others 2008 SCR 25 (C)
  300. — Art. 42-A (1) — Supreme Court Rules, 1978 — Order XLIII, Rule 5 — inherent powers of Supreme Court — exercise of — pre-requisite — u/Article 42A (1), before grant of relief to an aggrieved person, it is necessary that the matter or cause must be pending before the Supreme Court — appeal finally disposed of and remedy of review was also availed — no matter or cause was pending when appellant filed application under Article u/a 42A (1) read with rule 5 of Order xliii — held there must be an end to the litigation — appellant tried to submit application for rehearing of appeal after dismissal of review petition — Registrar rightly returned the application —  Syed Amanat Hussain Kazmi versus Registrar AJK Supreme Court MZD 2023 SCR 898  (A) MDA & others v. Reference /Distt. Judge Mirpur & others Civil Review No.4 19 / civil Misc. No.18 of 19, decided on 27.07.2020 & 2015 SCR 1430 ref.
  301. S. 42-A (3) — Leaves no doubt that an enunciation of a principle of law is binding on all the judicial and executive authorities working in Azad Jammu and Kashmir — The executive as well as the judicial authorities are bound to act in aid of Supreme Court — Refusal on the part of Finance Department is unjustified and without any lawful authority. Finance Department of AJ&K & others v. Mazhar Iqbal 2003 SCR 155 (B)
  302. S. 42-A (3) — Finance Department ignores the orders of this Court with the contemptuous disregard — In future the department will mend its ways and shall respect the orders of the superior Courts of this country — The Constitution being the supreme law is not subordinate to the wishes and whims of the Finance Department or any other Department. Finance Department of AJ&K & others v. Mazhar Iqbal 2003 SCR 155 (C)
  303. S. 42(8-A) — A person who has three years service as Judge High Court can be appointed as ad hoc Judge of this Court — In the same way an Advocate who has 15 years practice to his credit as an Advocate or pleader of High Court of Azad Jammu and Kashmir or Pakistan, can be appointed as a Judge of this Court — Before elevation the learned Judge had practiced in High Court exceeding 15 years — Before elevation to High Court he was eligible to be appointed as Judge of this Court.  Ajaib Hussain & another v.  Khalil-ur-Rehman & 5 others 2005 SCR 54 (B)
  304. Sections 42-B and 44 — writ against Banks established by the Govt. of Pakistan — its maintainability in the presence of any binding decision of Supreme Court — under section 42-B, any decision of the Supreme Court shall to the extent it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in AJ&K. There are number of judgments of this Court of binding nature declaring that Banks established under the authority of Govt. of Pakistan are neither acting in connection with the affairs of the State of Jammu and Kashmir nor same are the authorities under the control of AJ&K or the Council — Held: no writ can be issued against their management under section 44 of the AJ&K Interim Constitution Act. Raja M. Arif Khan & another v. Regional HR Chief NBP and 3 others 2014 SCR 564 (C)
  305. Section 42-B — full court judgment of Supreme Court — binding on benches of less strength — As on the specific legal proposition there is a full Court judgment which is of binding nature on the benches of less or equal strengths and can only be departed if the bench of larger  strength interprets otherwise. Javaid Ejaz v. Authority under AJ&K 2015 SCR 744 (S) 2005 SCR 1201 rel.
  306. Section 42-B — High Court Procedure Rules, 1984 — Rule 32(2) — decision of Supreme Court — binding nature of — the decision of the Supreme Court to the extent it decides a question of law or enunciates a principle of law is binding on all the Courts including the High Court — mandatory for the High Court to follow the judgments of Supreme Court, wherein the provisions of the rule 32(2) of the High Court Procedure Rules have been declared mandatory and non compliance merits dismissal of the writ petitions. Maroof Baig v. Azad Govt. & 8 others 2016 SCR 1359 (B)
  307. Section 42-B — judgments of Supreme Court — binding on High Court — observed that despite a number of judgments of Supreme Court, the High Court while deciding the writ petitions does not follow the judgments of Supreme Court to the effect that the provisions of rule 32(2) of the High Court Procedure Rules, 1984 are mandatory and non-compliance of the rules results into dismissal of the writ petitions and   applies the rule at its sweet will — In some cases the writ petitions are dismissed being filed in violation of rule 32(2) and in some cases the judgments of Supreme Court on rule 32(2) are ignored and petitions are entertained — Expected that High Court shall follow the rule of law laid down by Supreme Court. Maroof Baig v. Azad Govt. & 8 others 2016 SCR 1359 (C)
  308. Ss. 42, 42-B — AJK Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1998, S. 2(2) — Suit for recovery of money — Banking Court, Rawalpindi dismissed application for leave to defend and decreed suit — High Court accepted appeal and set aside judgment/decree of Banking Court — Question of jurisdiction — It was asserted that under the Adaptation Act, AJ&K Council had validly authorized the Banking Court, Rawalpindi, established by the Federal Government to exercise the powers of Banking Court for the territories of AJ&K — Factual/legal position — In instant case vide Notification No. L-1/2/97-AJKC, dated 14th May, 1998, the Banking Court established by Federal Government at Rawalpindi had been authorized and vested with the powers to try the cases relating to the territories of AJK — Court so authorized was neither established by the AJK Government or council nor the same was in the control of AJK Government or Council — Supreme Court had already declared such conferment of powers on the authority or person who were neither established nor controlled by the Government of AJK or Council, as void — Any principle of law enunciated by the apex Court is binding on all the functionaries — Authorization to Banking Court, Rawalpindi to try the case relating to the territories of AJK was void and would be deemed inoperative — Sub-section (2) of section 2 of the Adaptation Act, 1998, to the extent of authorizing to the Banking Courts established by the Federal Government of Pakistan, with the powers to act as Banking Court for the territories of AJK being ultra vires to the Constitution was to struck down or ignored — Held: Impugned judgment did not suffer from any legal infirmity and appellants had failed to justify the interference in it — Civil appeal dismissed. JURISDICTION OF BANKING COURT — (Territories of AJK) Authorization to Banking Court to try the cases relating to the territories of Azad Jammu and Kashmir was void and would be deemed inoperative — Appeal was dismissed by Supreme Court. Industrial Development of Pakistan v. Arshad Mahmood and 9 others 2013 SCR 929 (E)
  309. Section 42-D — AJ&K Supreme Court Rules 1978 — Order XLVI — while deciding review petition — review — scope of — under section 42-D read with Order XLVI — The Court cannot go beyond the relevant provisions of law — Review is only permissible when there is an error apparent on the face of the record — Held: The review cannot be argued like an appeal — The same cannot be allowed on the ground that a party is dissatisfied from the judgment or another view is possible. Secretary AJK Council v. M. Munir Raja& others 2015 SCR 474 (C) 2013 SCR 777 rel.
  310.  S. 42-D — Scope — Review of judgment or order by the Supreme Court — The Supreme Court shall have powers subject to the provisions of an Act of the Assembly or the Council and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it. Haji Nazir Ahmad v. Raja Muhammad Saeed and 11 others 2010 SCR 231 (A)
  311. S. 42-D read with O. XLVI of AJ&K Supreme Court Rules 1978 — scope of review — there is no second thought on the point that scope of review is very limited and the powers of review cannot be exercised while bypassing the relevant provision of law. The Court while entertaining the review petition is constrained to confine itself within the parameters determined u/s 42-D of Azad Jammu and Kashmir Interim Constitution Act, 1974, read with Order XLVI of Supreme Court Rules, 1978, and in the review, the parties cannot be allowed to reopen the case and argue the same like an appeal. Munshi Khan & 2 others v. M. Sadiq & another 2014 SCR 1012 (B)2009 SCR 192, 2011 SCR 96 rel.
  312. —Article 42-D—the Supreme Court is conferred jurisdiction to review judgment or order passed by it under Article 42-D, of the AJ&K Interim Constitution, 1974. Kh.Shabir Ahmed & others v. Development Authority & others 2022 SCR 1032 (A)
  313. S. 42-E — See Azad Jammu and Kashmir Interim Constitution Act,1974, S.44 (5). Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (L&K)
  314. Sections 42 (2) & (12) and 47 (3) — jurisdiction of Supreme Court — petitions for leave to appeal — against the judgments/orders of High Court, administrative Court or tribunal — section 42(2)  provides that subject to the provisions of the Act, the Supreme Court shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law. The petition for leave to appeal lies under Section 42 (12) of the constitution, from the judgment, decree, or order or sentence of High Court and under Section 47 (3) of the constitution from a judgment, decree, order or sentence of an administrative Court or Tribunal shall lie only if the Supreme Court being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal. In no other case a petition for leave to appeal is competent. Sardar Muhammad Hussain v. Dr. Najeeb Naqi & 12 others 2014 SCR 140 (B)
  315. Section 42(2)(10)(11) & (12) — jurisdiction of Supreme Court — appellate jurisdiction — direct appeal to Supreme Court and appeal by leave — U/S 42(2), the Supreme Court has jurisdiction conferred upon it by or under any other law. Under section 42(10) subject to the succeeding provisions of this section the Supreme Court shall have jurisdiction to hear and determine appeals from the judgment, decree, final orders or sentence recorded by the High Court — sub-section (11) of section 42 of the Act provides the cases where direct appeal, lies to the Supreme Court and sub-section (12) of section 42 provides that the appeal shall lie to the Supreme Court in the case to which sub-section (11) doesn’t apply and if the Court grants leave to appeal. WAPDA & others v. Taj Begum and others 2014 SCR 588 (C)
  316. Section 42(2)(11)(12) read with sections 25 IPL, 63(3) of AJ&K Legislative Assembly (Elections) Ordinance, 1970, 9 of Shariat Court Act, 1993 and 14(5) of Family Courts Act, 1993 — jurisdiction of Supreme Court — appellate jurisdiction conferred by Constitution or any other law, appeal by right and appeal by leave of the Court — direct appeal to Supreme Court — and appeal by leave of this Court — the jurisdiction upon Supreme Court is conferred under section 42(2) of the Constitution by the Constitution Act or by or under any law. Example of other laws i.e. under sections 25, IPL, 63(3) of AJ&K Legislative Assembly (Elections) Ordinance, 1970, and 9 AJ&K Shariat Court Act, 1993 direct appeal lies to Supreme Court and under section 14(5) of Family Courts Act, 1993 an appeal lies to Supreme Court if the Court grants leave to appeal on substantial question of law of public importance under section 42(11) and the Acts providing direct appeal, a party has a right to file an appeal and the appellant can file appeal in the Supreme Court on all objections he takes while appeal under section 42(12) lies in the cases where sub-section (11) does not apply and if the Supreme Court grants leave to appeal on a legal question.  U/s 42(11) of Constitution Supreme Court has jurisdiction to hear and determine appeals from the judgment and decree, final order and sentence of the High Court whereas u/s 42(12) of the Constitution a petition for leave to appeal shall be competent only in a situation which is not covered under the provision of section 42(11) of the Act. Held: under section 42(11) of the Constitution Act the value of the subject matter of the dispute in the Court of first instance was and also in dispute in appeal is to less than fifty thousand rupees and the High Court has varied or altered the judgment, decree or final order appealed from only direct appeal is competent in this Court and the petition for leave to appeal is not maintainable. WAPDA & others v. Taj Begum and others 2014 SCR 588 (F)
  317. S. 42(3)(8)(8-A) (A) (C) — Appointment of Acting Chief Justice — Non-fillment of vacancy of a permanent Judge — Effect of — There is distinction between the vacancy in the office of Chief Justice or the Judges of the Court and total abolishment of the Court — The objection that no one has been appointed as Acting Chief Justice and a vacancy of permanent Judge has also not been filled in there is no Supreme Court in AJK has no force — Held: The Supreme Court is in existence, however, it is not properly consituted as required by Constitution. In Re: Proceeding with regard to the provisions of S. 42 of the AJ&K Interim Constitution Act, 1974 2004 SCR 52 (B)
  318. Ss. 42(4), 43(2-A) & 7 — Supreme Court and High Court of Azad Jammu and Kashmir — Appointment of Judges — Procedure — Advice of Prime Minister — Relevancy — Advice of Prime Minister under S. 7 of Azad Jammu and Kashmir Interim Constitution Act, 1974, was not relevant for the purpose of appointment of Judges of High Court and Supreme Court of Azad Jammu and Kashmir. M. Younas Tahir v. Shaukat Aziz, Adv., Mzf’abad 2012 SCR 213 (G)
  319. — article 42-A — Inherent Powers of the Supreme Court, to do complete justice. Various directions issued by the Supreme Court — While taking into consideration the overall state of law relating to State Subject Certificate and Domicile applicable in the Azad Government of the State of Jammu and Kashmir, we are of the view that the procedures relating to the grant of State Subject Certificate and Domicile are on the one hand vague and on the other having inherent defects. We therefore are constrained to invoke the inherent powers vested to this Hon’ble Court under Article 42-A of AJK Interim Constitution Act 1974 in order to do complete justice and issue direction to Azad Government of the State of Jammu & Kashmir and for making suitable amendments in the law referred hereinabove; particularly, for providing the procedure with regard to the grant of State Subject Certificate and the grant of Domicile Certificate in favour of the State Subjects either residing in the territory of the Azad Jammu and Kashmir including the refugees of Jammu & Kashmir settled in Azad Jammu & Kashmir territory or the refugees of Jammu & Kashmir settled in Pakistan in the following manner:-
  320. The matters provided in the Circulars issued by the Board of Revenue dated 25.10.2003, 27.01.2014, 09.01.1998 and the matter provided in Notification dated 07.09.2001, 25.08.1997 shall be incorporated and made part of the Azad Jammu and Kashmir State Subject Rules 1980 in suitable manners.
  321. No State Subject Certificate or Domicile shall be granted in favour of any person having the status of refugees settled in Azad Jammu and Kashmir or refugees settled in Pakistan, unless the applicant does not provide the proof relating to his ancestral immovable property in any part of the State of Jammu and Kashmir to which the applicant claims his or her permanent residence. In order to obtain the certified copy with regard to the revenue record owned by such person situated in any part of occupied part of the State of Jammu and Kashmir, the procedure provided in Article 96 of Qanoon-e-Shadat Order 1984 as adopted in Azad Jammu and Kashmir shall be followed.
  322. Any document issued by any statutory authority in favour of refugees while entering into the territory of Azad Jammu and Kashmir or territory of Pakistan shall also be taken into consideration.
  323. While granting Domicile Certificate, all the prerequisites mentioned in Notification dated 25th August 1997 shall be fulfilled and all the prerequisites mentioned in Notification dated 25th August 1997 shall be made part of the Rules for the purpose of granting Domicile Certificate.
  324. Powers relating to Appeal, Review or Revision under Section 10 of the Act shall be exercised by a committee consisting of at least 3 persons and the Chairman of the committee shall be a person having judicial experience of the status of District and Session Judge who is qualified to be the Judge of the High Court. The period for decision of any Appeal, Review or Revision shall be specified which shall not be more than 03 months.
  325. Any matter with regard to grant or refusal of State Subject Certificate or Domicile Certificate shall be decided not more than a period of 06 months.
  326. While granting a State Subject Certificate or Domicile Certificate, the officer granting the State Subject Certificate or Domicile Certificate shall append a certificate at the foot of the proceedings certifying the observance of the procedure relating to the grant of State Subject Certificate or Domicile Certificate.
  327. A penalty shall also be provided to be inflicted upon the officer granting the State Subject Certificate or Domicile Certificate in case at any stage it is proved that the officer concerned did not adopted all reasonable means and that the certificate was not issued by ensuring that no fraud, false representation or concealment of any material fact was made.
  328. A Comprehensive procedure shall be provided for prosecution of a person, along with providing a penalty of punishment not less than 3 years, who obtained a State Subject Certificate by means of fraud, false representation or the concealment of any material fact or the persons who assist any such person in obtaining a State Subject Certificate or Domicile Certificate on the basis of fraud, false representation or the concealment of the material fact. Sabeel Ahmed Chohan v. Iftikhar-ul-Hassan & others 2023 SCR 303 (OO)
  329. —Article  42-B—Benches  of  equal  strength—conflicting  judgments—binding nature—According to the settled principle of law, in case of two conflicting judgments the view later in time has to be followed. Muhammad Hanif vs Muhammad Sadiq & others 2018 SCR 844  (A)
  330. S. 42(10) — Jurisdiction of Supreme Court — Appeal-any order or notification made by President-not challenged in the High Court — cannot be allowed to be challenged in appeal before this Court-Amendment application disallowed.M. Siddique Farooqi v.G.Mustafa Mughal1992 SCR 39 (A)
  331. Section 42 (11) — Appeals before Supreme Court — petition under section 561-A Cr.P.C. before High Court — an appeal lies to the Supreme Court, from any judgment, decree, final order or sentence of the High Court, if the High Court has, on appeal, reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid. A. Ghafoor v. Naseer Ahmed 2016 SCR 771 (A)
  332. .— Article 42 (11) (c & d) — direct appeal before Supreme Court— competency of — an appeal shall lie from any judgment, decree, final order etc. of the High Court if the amount or value of the subject matter in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified by the Act of the council and the judgment, decree, or final order appealed from has varied or set-aside the judgment & decree or final of the Court immediately below. Muhammad Rafique versus Mst. Sheena Akhtar & others 2023 SCR 668 (A)
  333. —Section 42 (2) (11) & (12) —Section 46—jurisdiction conferred on Supreme Court—exercise of it—- establishment of Monitoring Cell—status and scope of— Held: except the jurisdiction conferred by the Constitution or by law, the Supreme Court cannot exercise nor can it create any jurisdiction for itself— Sec 42 (11) and (12) confer jurisdiction of appeal and leave to appeal respectively, on the Supreme Court against the orders of the High Court—Laws can also confer jurisdiction upon the Supreme Court, but the Supreme Court itself cannot create a jurisdiction for it. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (P)  
  334. — article 42-B — Judgements, orders of the Supreme Court have binding nature on all executive and judicial authorities of AJK — AJK State Subject and domicile certificates — pronouncements of Supreme Court on referred matters, have binding nature — Held: While deciding the case we are constrained to note that the subject of grant of State Subject Certificate and the Domicile Certificate has been a constant subject matter of the various judgments pronounced by this court and this Court time and again have made observations and laid down a comprehensive rule of law for grant of State Subject Certificate and the Domicile Certificate which is binding on all executive and judicial authorities throughout AJK and they are under obligation to act in accordance with law laid down by the Supreme Court in view of Article 42-B of Interim Constitution of Azad Jammu and Kashmir. Sabeel Ahmed Chohan v. Iftikhar-ul-Hassan & others 2023 SCR 303 (JJ)                                           
  335. —Section 42(11)(d) & (e)—Direct appeal to Supreme Court— a direct appeal lies in this Court when the value of the subject-matter in the Court of first instance and in the appeal is not less than fifty thousand rupee and the High Court has altered or varied or set aside the judgment or decree of the Court immediately below. Begum Noor v. Azad Govt. & 3 others 2017 SCR 410 (A) Azad Govt. & 3 others vs Muhammad Rahim Khan & 38 others (Civil Appeal No.236 of 2015, decided on 08-02-2016) and 2014 SCR 588 rel.
  336. —Art.42(11) (d) & (e) —direct appeal—direct appeal lies in Supreme Court when the value of subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered or varied or set aside the impugned judgment or decree of the Court immediately below. Alhaj Sardar Manzoor Hussain Khan Versus Mst. Laila Ashiq & 3 others 2021 SCR 257 (C) 2014 SCR 588 rel.
  337. —Art. 42 (11) (d) and (e) —direct appeal— direct appeal lies in Supreme Court when the value of the subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered or varied or set aside the judgment or decree of the Court immediately below. Haqeeq Ahmed & 2 others Versus Ch. Mohammad Ashraf & another 2021 SCR 440 (A)
  338. Section 42(11) c — contempt proceedings before High Court — appeal — competency of — direct appeal lies in the Supreme Court if the High Court imposes any punishment on any person for contempt of the High Court — application dismissed by the High Court — Appeal not competent. Kausar Bibi v. Raja Abbas & 4 others 2016 SCR 779 (A)
  339. —Art. 42 (11)(c) — appeal before Supreme Court, in contempt proceedings before High Court—-prerequisite for—a direct appeal lies in the contempt matter, if High Court imposes any punishment on the contemnor— High Court not convicted the contemnors rather disposed of the application— Held: direct appeal not competent. Abdul Rauf Qureshi v. Kh. Manzoor & others 2022 SCR 730 (A)
  340. —Art. 42 (11)(c) — direct appeal lies in the Supreme Court if High Court imposes any punishment on any person for contempt of High Court. Abdul Rauf Qureshi v. Kh. Manzoor & others 2022 SCR 730 (B) —Art. 42 (11)(c) — an appeal before Supreme Court in the contempt matter, would be contempt only against an order of conviction or sentence but not against an order through which further time extended for implementation of judgment or refusing to convict the contemnor. Abdul Rauf Qureshi v. Kh. Manzoor & others 2022 SCR 730 (C)
  341. S. 42 (11)(D) — Appeal — Value  of subject matter — Appeal lies only if the decree appealed from has varied or set aside the decree of the Court below — No appeal provided against the decree of affirmation. Muhammad Sharif and 7 others v. Azad Govt. and another 1997 SCR 351 (A)
  342. S. 42(11)(D) — No doubt on account of oversight or negligent no limitation has been prescribed even under the Supreme Court Rules 1978 — Wherever a remedy has been provided the procedure to avail the same and the period within which that remedy can be availed is also provided under law or rules framed to carry out the purposes of such law — No matter is left open for indefinite period — The appeal is a right which is provided by law — There is always a limitation provided for availing this remedy — If right of appeal is not availed within such period of limitation then issues resolved by the Court of competent jurisdiction shall bar fresh litigation after the prescribed period, because in such case the matter in dispute having passed in rem judicatum shall bar the re-opening of that matter — The litigation must come to an end even under public policy, no individual can be vexed twice for the same cause — Finality is to be  given to pronouncements of the Courts and no matter is to be left open for indefinite period at the pleasure of the contesting parties — To avail the jurisdiction of appeal before this Court period must be provided. Defence Department of Pakistan v. Muhammad Khan and another 2004 SCR 459 (C)
  343. —Art. 42(11) (d)— Code of the Civil Procedure, 1908— sections 2(2) , 144 & Order XXI—pre-emption suit dismissed in default— value of subject matter more than Rs.50,000/ whether direct appeal lies or not—proposition of—direct appeal lies in the Supreme Court where the value of subject matter is not less than 50,000/- and the High Court has set aside or varied the ‘judgment, decree or final order’ of Court immediately below— the order passed by the District Judge, which is outcome of an application filed for dismissal of the suit on account of default committed, does not fall within the ambit of ‘judgment, decree or final order’— u/s 2(2) of CPC, ‘decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy and may be either preliminary or final—it shall be deemed to include the rejection of a plaint, the determination of any question within section 144 and an order under rule 60, 98, 99, 101, or 103 of Order XXI— it shall not include; (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default— trial Court passed order on account of default in shape of withdrawal of amount, hence, the order passed by the trial Court as well as District Judge is not ‘judgment, decree or final order’, thus, held: the constitutional provisions are not attracted. Mudassar Hussain Shakir v. M. Basharat & another  2022 SCR 973 (A)
  344. S. 42(11) (D)(E) & 57 — Appeal as of right — Certificate by the High Court in case of filing an appeal not required where an appeal has been provided as of right. Muhammad Khan and another v. Muhammad Sharif & another 2001 SCR 49 (A)
  345. S. 42(11)(D) — Direct appeal in Supreme Court — Competency —Whether a direct appeal in Supreme Court under the Constitutional provision was competent when the value of the subject-matter was not less than Rs. 50, 000/- and the High Court had not altered, varied or set aside the judgment of the Court immediate below — Proposition — It was held that a direct appeal in Supreme Court was competent only when the value of the suit in the original Court or in appeal was competent only when the value of the suit in the original Court or in appeal was not less than Rs. 50,000/- and High Court had modified, set aside or altered the order/judgment of the Court immediate below — Misconception of law — Appellant sought treating the appeal as PLA — Validity — Appellant was negligent, therefore, not entitled for condonation of delay — If period of limitation was treated from date of announcement of judgment of the Court, even then application had been filed more than two months beyond period of limitation  — Appellant filed appeal in High Court from the order of lower Court which was dismissed and direct appeal was filed in this Court — High Court had not altered the judgment of the Court immediately below — Direct below was not competent — Civil Appeal Dismissed. DIRECT APPEAL IN SUPREME COURT — (Conversion treatment) High Court had not altered the judgment of the Court immediately below, therefore, direct appeal before Supreme Court was not competent. Dismissed. Chief Administrator Auqaf v. Sain Ghulam Ahmed and others 2013 SCR (SC AJ&K) 715
  346. Section 42 (11) (D) and (E) — direct appeal to Supreme Court — If the value of the subject matter is not less than fifty thousand rupees and the High Court has altered the judgment, only direct appeal is competent before the Supreme Court. Khalid Mehmood  & 2 others v. Collector Land Acquisition & 3 others 2016 SCR 1075 (A) Ibrahim Yaqoob & others v. Ghulam Murtaza & others (civil appeal No. 85 of  2015,  decided  on  22. 1.2016) rel.
  347. Section 42(11), (D) & (E) — Direct appeal to Supreme Court — Pre-emption suit — value of subject matter more than Rs.50,000 — High Court set aside judgment of the court immediate below, the District Court — PLA filed instead of the appeal in the Supreme Court — Leave to appeal not granted within 60 days-limitation for filing of appeal — No application for conversion/treating of PLA into appeal within prescribed limitation — PLA not competent — The  petition for leave to appeal in the instant case had not attained status of appeal within the prescribed limitation i.e. 60 days, and  if it would have been so, then the argument of counsel for the appellants may have substance and it could be presumed that within limitation the appeal has been brought before the Court. The petition for leave to appeal remained pending for almost 5 months. According to the constitutional provisions and the principle of law enunciated in Taj Begum’s case, petition for leave to appeal do not lie, thus, filing of petition for leave to appeal was not valid. As the appellants failed to file any valid appeal or applied for conversion of petition into appeal within prescribed time; whereas the limitation prescribed by law i.e. (60 days), expired during pendency of incompetently filed petition for leave to appeal, consequently, by operation of law and following the dictum laid down by this court in Taj Begum’s case, this appeal is not maintainable. Ibrahim Yaqoob & 6 others v. Ghulam Murtaza & 5 others 2016 SCR 896 (B) 2014 SCR 588 rel.   
  348. —Section 42-E Enquiry into conduct of Judge by Supreme Judicial Council—composition and quorum of Council—functioning and independent states of it—Section 42-E provides ever constituted self-operative body of Supreme Judicial Council—-also provides the mechanism if the inquiry relates to Chairman or any of its member or in case of inability due to absence, illness or any other cause, of anyone of them—This scheme of Constitution is of great importance to safeguard the independence and dignity of the Judiciary—The constitution of Supreme Judicial Council or its operation does not require any sort of direction from executive except the direction of holding inquiry in matter of incapacity of a Judge to perform his duty or being guilty of misconduct—Held: Once direction (Reference) is admitted for inquiry by the Supreme Judicial Council, executive or any other authority has no power to interfere into the inquiry or withdraw the same. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (S)   
  349. —Section 42-E—Section 46—code of conduct for the Judge of superior Courts—reference to enquire the conduct of a judge—exercise of original jurisdiction—The ignorance, overlooking or deliberately adopting a course against law and rules is flagrant violation of Code of Conduct of Judges, which requires a Judge to be law abiding  and violation of the oath of office which requires him to perform duties of office with ability and knowledge according to law enforce in AJ&K—It is a clear
  350. transgression of Constitution and unconstitutional usurpation of powers, amounting to misconduct. Sub Sec (4) of Section 46 of the Constitution specifically bars all the courts that ‘no court shall have any jurisdiction which is not conferred on it by this Act or under any other law— There is no law in AJK
  351. which confers original jurisdiction on the Supreme Court, hence entertaining or admitting a petition in original jurisdiction and issuing a prohibitory order in pursuance thereof is transgression of the Constitution. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (H)                                             
  352. — Section 42-E—Constitution of Islamic Republic of Pakistan, Article 209 —Supreme Judicial Council—composition and quorum of it— the provisions of section 42-E of the Act are not in line with Article 209 of the Constitution of Islamic Republic of Pakistan— Chief Justice of AJK is the Chairman of SJC and the next senior Judge of the Supreme Court and the Chief Justice of the High Court are its members—if SJC is inquiring into the conduct of a Judge, who is member of SJC or member of SJC is absent or unable to act due to illness or any other cause, then in absence of the Chief Justice of the Supreme Court, senior Judge shall act as Chairman of the SJC and in absence of the Chief Justice of High Court, senior most Judge of the other Judges of the High Court has to act as member of the SJC. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (FF) —Section 42-E (7) —Code of Conduct for the judges of the Superior Courts—The code contains the necessary characteristics of conduct of a Judge and if any of such characteristics is missed by the Judge it amounts to misconduct, hence this provision of law is self-explanatory and leaves no necessity to borrow the definition of “misconduct” from any other statute or import its meaning from any other source. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759              
  353. —Article 42(11)—direct appeal in criminal cases—only competent, if the High Court has reversed the order of acquittal and sentenced the accused to death or life imprisonment or on revision enhanced a sentence to a sentence as aforesaid—All other orders which do not fall within the domain of Art. 42(11), can only be challenged by filing PLA— Anis Ibrahim v.The State & another 2019 SCR 782 (B & C)
  354. — art. 42(11)c — filing of direct appeal before this Court in the matter of contempt of Court — direct appeal lies in the Supreme Court if the High Court imposes any punishment on the contemnor for contempt of the High Court — in the instant matter, the learned High Court has not convicted the contemnors, rather the application has been consigned to the record. Thus, a petition for leave to appeal should have been filed under Art. 42 (12) of the constitution. Abdul Waheed Qasmi & others v. Dr. Shahzad Ahmed Bangish & others 2023 SCR 193 (A&B) 2016 SCR 779 & 2022 SCR 730 ref.
  355. — Article 42 (11) (d) — direct appeal before Supreme Court- crucial conditions for competency of appeal — constitutional provisions contemplates two crucial conditions — first, the monetary threshold of subject matter and second, the variation or setting aside of the judgment, decree or final order of the Court immediately below: the subject matter in appeal is not less than 50,000 rupees and High Court set aside the judgment of District Judge, thus, held: an appeal was competent and not the PLA — Muhammad Rafique versus Mst. Sheena Akhtar & others 2023 SCR 668 (B) 2021 SCR 440 rel.
  356. —Section 42 (11) (d) and (e)—direct appeal—Held:that if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is not less than 50,000/-rupees and the judgment, decree or final order appealed from has varied or set aside judgment, decree or final order of the Court immediately below, direct appeal is competent. Clause (e) further stipulates that if the judgment, decree or final order involving directly or indirectly some claim or question respecting property of the like amount or value and the judgment is varied or set aside by the High Court then also direct appeal is competent. Raja Khalid Mehmood & others vs Muhammad Hussain &others 2018 SCR 1195 (C)
  357. S. 42 (11)(F), read with section 109,110, O.XLV, r.3 CPC — Filing of appeal —  Certificate by High Court — Ss.109, 110, O.XLV, r.3 of CPC were enacted when the Interim Constitution Act was not promulgated in AJK — Any provision of C.P.C. which is inconsistent with the provisions of S. 42 of Interim Constitution Act same cannot be given effect to. Muhammad Khan and another v. Muhammad Sharif & another 2001 SCR 49 (C)
  358. S. 42(11)(D) &(E) — If the amount of value of subject matter in dispute is not less than  Rs.50,000/- in the Court of first instance and in the appeal — Direct appeal is competent. Muhammad Khan and another v. Muhammad Sharif & another 2001 SCR 49 (D)
  359. Section 42 (11) (D) read with section 36 of Courts and Laws Code 1949 — Appeal — Subject matter —Means the actual market value of the subject matter and not the value of the suit which is national value fixed under Suits Valuation Act — Direct appeal is competent when the market value of the suit is admittedly Rs. 1,00,000/- M. Khan v. M. Sharif & another 2001 SCR 49 (E)
  360. S. 42 (11)(D) — Appeal — “Value of the suit” & ” value of the subject matter” meaning of — Held: direct appeal was rightly filed u/s.42(11)(D) M. Khan v. M. Sharif  2001 SCR 49 (F)
  361. Section 42 (11) (D) — Direct appeal to Supreme Court — An appeal to the Supreme Court lies from the judgment, decree, final order or sentence of High Court under section 42(11) — under section 42 (11) (D) appeal lies, if the amount or value of the subject matter of the dispute in the Court of 1st instance was, and also  in the dispute in appeal is not less than fifty thousand rupees and the High Court has varied or set aside the judgment, decree or final order of the Court immediately below. Ghulam Asghar v. Sarwar Begum 2015 SCR  141 (A) WAPDA & others v. Taj Begum &  others  Civil  PLA  No.  2002/13 decided on 3.2.2014 & 2012 SCR 471 rel.
  362.  Section 42 (11) (D) — direct appeal — The value of the subject matter in the trial Court was 3 million rupees and decree passed — High Court amended the decree and fixed the price as 1.5 million rupees instead of 3 million rupees — the decree has been varied — Held: direct appeal lies against the judgment/decree of the High Court in this Court. Ghulam Asghar v. Sarwar Begum & 15 others 2015 SCR  141 (B)
  363. Section 42(11) (D) — appeal to the Supreme Court — when the value of the subject matter in the Court of first instance was and in the High Court is not less than Rs.50, 000/- and the High Court has altered, varied or set-aside the judgment & decree of Court immediately below then direct appeal lies in the Supreme Court. Azad Govt. v. M. Yousaf 2015 SCR 1190 (A&B) 2014 SCR 588 ref.
  364. Section 42 (11) d & e — Direct appeal to Supreme Court — Interpretation of words ‘or’ and ‘and’ — When appeal lies — Determination of — Appeal shall lie, — (D) If the amount or value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree of final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or — (E) If the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree of final order of the Court immediately below — In clause (D) the word ‘or’ has been used between amount and value of the subject matter of dispute and the conjunction ‘and’ has been used by placing it after part of the sentence ending at the word ‘was’ and followed by a coma(,) the word ‘or’ has again been used after mentioning the ‘minimum’  amount of fifty thousand rupees and again the word ‘or’ has been used before the words ‘such other sum  as may be specified in this behalf by the act of the Council — the punctuation/conjunction ‘and’ has finally been used proceeding the condition, the judgment, decree or final order of the Court immediately below — In the first part of the rendering meaning of ‘or’ is used in disjunctive sense and covers each of the words ‘amount’ and ‘value’ but doesn’t postulate the condition of inclusion of amount as well as value — therefore, the word ‘amount’ or ‘value’ of  the subject matter of the dispute in the Court of first instance would mean that either the amount of the claim or value of the subject matter of the dispute in the Court of first instance is not less than fifty thousand rupees — As for the placement of word ‘and’  after  coma(,)  is concerned, it clearly speaks that the amount or value in this Court should not also be less than fifty thousand rupees  — After this expression ‘or’ has been used to cover the cases wherein the amount of appeal has been mentioned as more than fifty thousand rupees by act of the Council — such other sum, used means any amount fixed by law and it shall be read as fifty thousands rupees or such other amount — on plain meaning, interpreting this part of clause (D), as provided that whether the amount or value of the subject matter of the dispute in the Court of first instance as well as in dispute in appeal is not less than fifty thousand rupees or such other amount as may be specified in that behalf by the act of the Council, a direct appeal shall lie in the Supreme Court — The later part of clause (D) which reads, ‘‘and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below’’ — this condition of variance and setting aside the judgment covers the eventuality discussed in the first part of clause (D) and the amount or value of the subject matter in the first instance and in this Court should not be less than fifty thousand rupees or any other amount which is brought on the Statute-Book by the act of the Council —  the punctuation/conjunction ‘‘and’’ which is abbreviated as & the word having a cumulative sense of joining together all conditions, so primarily it is an antithesis of ‘‘or’’ in order that the second part might be held independent of the first part, it should by itself be complete and be capable of operating independently — unless this test is satisfied the conjunction ‘‘and’’ would have to be read as imparting into what follows it, the conditions and considerations set out earlier, as otherwise even the first would be incomplete. — Held: under clauses (D) and (E) of subsection (11) of section 42 of the Interim Constitution Act, 1974, a direct appeal lies to the Supreme Court if the amount or value of the subject matter in the first Court as well as in appeal before the Supreme Court is not less than fifty thousand rupees or any increased sum specified by the Act and the judgment, decree or final order placed before the Court is varied or set aside by the High Court or if the judgment, decree or final order by the High Court involves directly or indirectly claim or question respecting  property of fifty thousand rupees amount or value and the High Court has varied or set aside the judgment, decree or final order of the Court immediately below — Further held: If the High Court doesn’t vary, alter or set aside the judgment of the Courts below a direct appeal to the Supreme Court is not competent, although the amount or value of the subject matter is more than fifty thousand rupees. Chief Administrator Auqaf v. Sain Ghulam Ahmed Nisar & 38 others 2011 SCR 471 (A,C,D,E,L,M) AIR 1964 SC 1099 ref.
  365. Section 42(11)(D) — direct appeal to Supreme Court — Held: when the value of the subject matter in the Court of first instance and in appeal is to less than fifty thousand rupees and the High Court has altered or varied the judgment or decree of the Court immediately below, than a direct appeal lies to Supreme Court. WAPDA & others v. Taj Begum and others 2014 SCR 588 (E)
  366. Section 42(11)(D) and (E) — direct appeal to Supreme Court — section 42(11)(D) and (E) of the Act provides that the appeal shall lie to the Supreme Court from any judgment, decree or final order of the high Court, if the amount or value of the subject matter of the dispute in the Court of first instance was and also in dispute in appeal is not less than fifty thousand rupees or such other sum, as may be specified in that behalf by the Act of the Council and that judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below. WAPDA v. Taj Begum 2014 SCR  588 (D) 1997 SCR 351 & PLJ 2012 SC (AJ&K) 1 rel.
  367. —Art. 42(11) —direct appeal before Supreme Court— competency of—matter arising out of Sales Tax Appellate Tribunal—objection that value is more than Rs. 50,000- and High Court has varied that judgment of Tribunal, thus, PLA is not competent—Held:according to Art. 42(11)against the judgment of the High Court a direct appeal is competent when the conditionsincorporated therein are fulfilled—under clauses (d) and among others, the required condition for filing a direct appeal before Supreme Court is that the High Court has varied or set-aside the judgment, decree or final order of the ‘Court’ immediately below—Further held: that it is pre-condition for filing direct appeal that the matter before the High Court should have been arisen from the ‘Court’ and not the ‘Tribunal’ like the Sales Tax Appellate Tribunal—Further held:in all the appeals before the High Court, the judgment challenged was not of ‘Court’ rather of ‘Tribunal’ which does not fall within the definition of ‘Court hence direct appeals before this Court are not competent’. Commissioner AJ&K  Inland Revenue vs Zakir Hussain & others 2018 SCR 836 (A, B & C) 2017 SCMR 9 rel
  368. —Section  42-D—-AJ&K  Supreme  Court  Rules,  1978—Order XLVI—review jurisdiction (criminal)—scope of—the review jurisdiction in the criminal matters is limited one and review powers can only be exercised if there appears mistake or error apparent on the face of the record— However, there is also consensus of the superior Courts that if there appears something which is obvious in the judgment, had been overlooked and that if it would have been considered by the Court the final result would have been otherwise or if the contents of an exhibit escaped the notice of the Court, then the Court is very much empowered to reappraise the evidence and record and may review the judgment. Yasmin Ashraf &others vs Abdul Rasheed Garesta &others 2018 SCR 661 (B)
  369. —Section 42-E(4)—deviation from principle of  stare si  decisis—constitutional  consequences   attract—no        person immune from—even the judge of the High Court—matter may be referred to the Supreme Judicial Council—in case of deviation from the principle —the judges of courts below cautioned—not to ignore dicta of Supreme Court— the law enunciated by the Apex Court is  binding in nature and  in case of non-compliance,  the answer is provided by, the AJ&K Interim Constitution Act, 1974, in  section  42-E(4),  and  no  person  is  immune  from  the  legal consequences thereof, even the judge of the High Court. In future, if such situation arises, the matter may be referred to the Supreme Judicial Council, therefore, the learned judges of the courts below shall remain careful in future while passing such types of orders and adopting such like attitude i.e. to ignore the dicta of the Apex Court. Muhammad Sajjad Khan vs Abdul Qadoos Khan & others 2018 SCR 216 (J)
  370. Leave to appeal has been filed under section 42(12) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 which provides that an appeal to this Court would be competent from a judgment, decree order or sentence of the High Court in a case to which sub section (11) of section 42 does not apply, if the Supreme Court grants leave to appeal — The impugned order is not covered under section 42(11) of the Interim Constitution Act, and thus, the petition for leave to appeal filed to this Court under section 42(12) of the Act was competent — Further held: C.P.C. is not applicable to the proceedings before this Court. Tassadiq H. Shah v. Karam Noor and 4 others 2000 SCR 232 (A)
  371. Order of High Court not passed in a case or in a judicial proceeding, it appear to have been passed in a meeting which purportedly appears to be administrative meeting of High Court Judges — Supreme Court is the apex appellate Court against the judicial orders, judgment, decree and sentences passed by High Court or any other Court or Tribunal and not the controlling authority in respect of administrative matters of High Court — The order impugned is administrative in nature — It does not fall in the ambit of judicial order as visualized by section 42(12) — Decisions or orders of the learned Judges of the High Court passed in their meetings are executive and administrative business of the Court — Orders passed in their meetings by learned Judges are administrative orders and not judicial orders subject to appeal before the Supreme Court. ABDUL RAHEEM ZUBAIR BUTT v. AJ&K HIGH COURT & 7 OTHERS 2002 SCR 455(A)
  372. S. 42(12) — See Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.9. Misbah Mushtaq v. D.P.I. Colleges, AJ&K, Muzaffarabad 2012 SCR 11
  373. S. 42(12) — Civil service — Appointment — Public Service Commission conducted examination for recruitment of Civil Judges — Petitioner who competed for the appointment, and failed to qualify the written test, filed application for rechecking and remarking of answer books — Public Service Commission declined the rechecking and remarking of the answer books — Petitioner alleged that the refusal was mala fide, violation of its instructions as well as discriminatory because similar instructions were prevalent in different autonomous bodies i.e. Universities, the Boards of Intermediate and Secondary Education — High Court dismissed writ petition filed by the petitioner through impugned judgment — Petitioner had failed to substantiate his argument by reference of any statutory provision — Boards and Universities had their own rules and regulations, whereas the Public Service Commission was altogether an independent autonomous body having its own rules, regulations and criteria — Unless it was specially provided by any statute that para meteria provision of any other statute would be attracted or applicable, no institution or legal person could be forced by implication to follow the mode or procedure of any other institution — Without any specific express provision argument of the counsel for the petitioner that the standard prescribed for marking papers of Universities and Boards was applicable to Public Service Commission, was without any substance — High Court had recorded an authoritative judgment after appreciation of every aspect of the case and taking into consideration the legal precedents — Petitioner having failed to point out any violation of statutory provisions or any legal infirmity in the impugned judgment of High Court, petition for leave to appeal was dismissed by the Supreme Court, in circumstances. M. Irshad Khan v. P.S.C., AJK through Chairman and 3 others 2012 SCR 92
  374. S. 42(12) — See Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.4. Hussain Khan v. Azad Government 2012 SCR 45
  375. S. 42(12) — See Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2. Abdul Ghafoor and 4 others v.  Muhammad Azam and another 2012 SCR 65
  376. S. 42(12) — Civil service — Appointment — Public Service Commission conducted examination for recruitment of Civil Judges — Petitioner who competed for the appointment, and failed to qualify the written test, filed application for rechecking and remarking of answer books — Public Service Commission declined the rechecking and remarking of the answer books — Petitioner alleged that the refusal was mala fide, violation of its instructions as well as discriminatory because similar instructions were prevalent in different autonomous bodies i.e. Universities, the Boards of Intermediate and Secondary Education — High Court dismissed writ petition filed by the petitioner through impugned judgment — Petitioner had failed to substantiate his argument by reference of any statutory provision — Boards and Universities had their own rules and regulations, whereas the Public Service Commission was altogether an independent autonomous body having its own rules, regulations and criteria — Unless it was specially provided by any statute that para meteria provision of any other statute would be attracted or applicable, no institution or legal person could be forced by implication to follow the mode or procedure of any other institution — Without any specific express provision argument of the counsel for the petitioner that the standard prescribed for marking papers of Universities and Boards was applicable to Public Service Commission, was without any substance — High Court had recorded an authoritative judgment after appreciation of every aspect of the case and taking into consideration the legal precedents — Petitioner having failed to point out any violation of statutory provisions or any legal infirmity in the impugned judgment of High Court, petition for leave to appeal was dismissed by the Supreme Court, in circumstances. M. Irshad Khan v. PSC., AJK through Chairman 2012 SCR 92 2011 SCMR 848 rel.
  377. S. 42(12) & 44 — See West Pakistan Land Revenue Act (XVII of 1967), S.135. Muzaffar Hussain Khan v.Board of Revenue 2012 SCR 415 (B)
  378. S. 42(13) — Interpretation of — While interpreting statutes the Court has to ascertain the basic intention of Legislature — Fundamental principle of constitutional construction has always been to give effect to the intent of the framers of organic law and of the people adopting it. Azad Government & 3 others v. Mujahid Hussain Naqvi & another 2009 SCR 447 (A)
  379. S. 42 (13)(B) — Opinion expressed by the majority of the Judges the application for clarification of judgment dismissed — Order of the Court. Ghazi Vegetable Ghee & Oil Mills Limited Mangla Mirpur  v. Deputy Commissioner of Income Tax & 3 others 2004 SCR 158 (M)
  380. S. 42 (13) (C) — Difference of opinion —The opinion of senior of the two Judges shall prevail. Khawaja Ahmad Din  v. Mohammad Shabir Khan 1994 SCR 142 (F)
  381. —Section 42(13) (a) & (b) — Section 42-D—review against minority view—an appeal before the Supreme Court shall be heard by a bench consisting of not less than two judges to be constituted or reconstituted by the Hon’ble Chief Justice—if the judges hearing a petition or an appeal are divided in opinion, the opinion of majority shall prevail—Held: as the judgment of the majority has to prevail and is the judgment of the Court, therefore, the review petition filed against an opinion of the minority/single Judge is not competent even if it is treated as an interim order. Muhammad Munir Raja vs Chairman AJ&K Council& others 2018 SCR 48 (E & F)
  382. S. 42 r/w S.10(4) ZHA & 452, A.P.C. — Commission of rape — Shariat Court while accepting appeal acquittal respondents — Benefit of doubt — Appreciation of evidence — Validity — First main dent in prosecution story was the unexplained delay in reporting the matter to the police — Such-like delay creates doubt in minds — Another main dent in prosecution story was the identification of accused — Leaving aside other minor discrepancies and other aspect of prosecution case, those two were such a major dents in prosecution story which at least created serious doubt regarding identification of accused — It had been categorically deposed by said PWs that alleged offence was committed by unknown persons — Benefit of doubt always goes in favour of the accused — Victim had been examined medically after almost four weeks’ time and no any incriminating Article had been recovered from accused to convict therein with commission of offence with certainly — Shariat Court had not committed any illegality while extending benefit of doubt to respondents — Criminal appeal dismissed. RAPE — (Benefit of doubt) Benefit of doubt. Criminal appeal was dismissed. Impugned judgment of acquittal in rape case. State through Adv. General Muzaffarabad v. Talib Hussain and 2 others 2013 SCR (SC AJ&K) 192 (C)
  383. S. 42 r/w Ss. 302/201, A.P.C. — Qanun-e-Shahadat Order, 1984, Arts. 29, 40 — Murder trial — Circumstantial evidence — Impugned judgment of acquittal — Analysis — It was a case of unseen occurrence and whole case hinged on circumstantial evidence — Originally nobody was mentioned in  — It was lodged after a considerable delay and in that regard no explanation had been brought on record — In such-like cases in which no ocular account was available, except circumstantial evidence, delay is always fatal for prosecution — Recovery of skull was allegedly recovered at instance of accused-respondent from said Haveli but owner of Haveli was not cited in calendar of witnesses of recovery — It was also on record that at time of recovery, may other person including owner of Haveli were present but no independent person was cited in list of witnesses — In instant case skull was not recovered on exclusive pointation of accused — Dead-body and skull were recovered on different dates and no such independent evidence came on record that the skull was of same body — So far as last seen evidence was concerned, statements of said PWs were recorded by police under Section 161, Cr.P.C. after one month of occurrence and in that regard there was no explanation available on record that why they remained mum for such a long time — Even otherwise, statements of said PWs cannot plausible as they had seen accused from a distance of 150 to 200 yards in night hours — Even otherwise, last seen evidence is weakest type of evidence and if there is some last seen evidence then the strong corroboration is required — Also extra-judicial confession is the weakest type of evidence and conviction could not be recorded on such type of evidence — IN case of circumstantial evidence the motive is very important — Once the motive is set up that should be proved through cogent evidence — Both the Courts below had passed judgments after giving their thoughts and appreciating evidence on record according to the settled norms of justice — Criminal appeal dismissed. ACQUITTAL (MURDER) — (Circumstantial evidence) In Instant case identification of dead–body alongwith skull was doubtful. Impugned judgment of acquittal was upheld. Munawar Hussain and 2 others v. Imran Waseem and another 2013 SCR (SC AJ&K) 374 (C)
  384. S. 42 r/w Ss. 302/34, A.P.C. — Occurrence of murder — Trial — Variation and discrepancies in statements of PWs —Flaws — Quantum of sentence — Appreciation of evidence — Validity — Although prosecution had established firing by accused which resulted into death of deceased but exact part of story and scene of firing in light of analysis of prosecution of evidence, specifically variation of statements of PWs, remained cloudy — Keeping in view admitted relationship of PWs with deceased, capital punishment was too harsh — Impugned sentence of death as ‘‘Qisas’’ was converted into 14 years’ R.1. — Sentence reduced. TRIAL (MURDER) — (Quantum of sentence) There were contradictions in statements of PWs. Impugned death sentence was converted into 14 years’ R.1. Fazal Begum and 2 others v. M. yaseen and another 2013 SCR 389
  385.  — article 42-A (3) — all executive and judicial authorities throughout in Azad Jammu and Kashmir are required to act in aid of Supreme Court and take immediate steps to implement the rule of law laid down by Supreme Court in its judgments on subject of State Subject and domicile — Held: while examining the aforesaid judgments, we have come across to a very sad state of affairs, that the rule of law laid down by this Court from time to time with regard to the grant of State Subject Certificate and Domicile Certificate has not been implemented in letter and spirit. Executive Authority have no other alternative but to act in aid of Supreme Court, persons responsible for non-implementation of the judgment of the Supreme Court can be punished for contempt for disobedience of the Judgment of the Supreme Court and if it is found that the executive authorities are unable to act in aid of Supreme Court, the judgment of the Supreme Court is not implemented, then such situation would be open to be construed as impasse for deadlock and would amount to very unhappy situation reflecting failure of Constitutional authority. In the aforesaid state of affairs, we are mindful of the fact that the rule of law laid down by this Hon’ble Court time and again on the subject of State Subject and Domicile has not been complied with. Fact remains that in view of Article 42-A(3) all executive and judicial authorities throughout in Azad Jammu and Kashmir shall act in aid of Supreme Court and take immediate steps to implement the rule of law laid down by this Court in its judgments. Therefore, to achieve an object that the rule of law laid down by this Court from time to time shall not be violated and the increasing litigation pertaining to the State Subject and Domicile day by day should be curtailed and the public at large should be provided the fruits of the rule of law laid down by this Court. Sabeel Ahmed Chohan v. Iftikhar-ul-Hassan & others 2023 SCR 303 (KK)
  386. S. 42 r/w S. 302(C), APC — Occurrence of murder — Criminal trial — Sentence of 20 years’ R.1. was reduced to 14 years’ R.1. by Shariat Court — Identity of culprits — Contradiction — Appreciation of evidence — Validity — Prosecution is not bound to produce each and every witness but if the prosecution fails to produce such witness who is central figure and all the story revolves around him, then the prosecution story becomes doubtful — Only conclusion which could be drawn from non-production of mentioned person as a witness in Court was that version put forth by prosecution that said person came at house of complainant /PW, was not true — Prosecution failed to substantive the fact of conspiracy — No evidence of conspiracy was brought on record — District Criminal Court and Shariat Court concluded that there was no evidence on record with regard to conspiracy, instead of acquitting appellant, Courts below convicted him — Such conviction was bad in law — Presence of PWs at place of occurrence appeared to be doubtful particularly, from comparative study of their statements, the site-map and medico-legal report — Identification by stature and firing places from a distance of 270 feet in the moonlight and light of torches, was not possible — Statements of PWs when seen in juxtaposition, did not ring true because in late hours of night it was not possible to identify the running persons from such a long distance in moonlight and in light of torches — Medico-legal report and site-map contradicted PWs and cast serious doubts in prosecution story — Instant occurrence appeared to be un-seen — Prosecution failed to prove its case beyond reasonable doubt — Criminal appeal was allowed by Supreme Court. MURDER —(Identity of culprits) [Presence of eye-witnesses/PWs at place of occurrence was doubtful. Prosecution failed to prove its case beyond reasonable doubt. Criminal appeal was allowed by Supreme Court]. Qadir Baksh and others v. The State 2013 SCR 439 (C)
  387. S. 42 r/w Ss. 302/34, APC — Qanun-e-Shahadat Order, 1984, Art. 120 — Occurrence of murder — Charge — Trial Court acquitted accused-respondent and appeal thereagainst was dismissed by Shariat Court — Medical evidence — Validity — No plausible explanation had been brought on record as to why mentioned doctor conducted post-mortem of dead-body in presence of other doctor whose duty had already started — There was no fracture  on portion of skull where said injury was inflicted  but it caused a bruise/cracks on the backside of skull of deceased — Both the medical reports were contradictory which created serious doubt as to what was the injury which caused death of deceased — Moreover, when statement of related PW was considered alongwith observation made by Shariat Court that both the parties belonged to different sects a doubt was created that alleged accused might have been enroped in case due to sectarianism — No real cause of death came on record — PWs/alleged eye-witnesses had themselves admitted that deceased did not fall on ground, therefore, injuries caused on right side of head of deceased were shrouded in mystery — Impugned judgment of Shariat Court was well-reasoned and no element of perversity had been found by Supreme Court — Criminal appeal dismissed. ACQUITTAL —(Absence of cause of death) Appreciation of medical account. No cause was brought on record for death of deceased. Impugned judgment of acquittal was maintained by Supreme Court. Nadeem Ahmed v. M. Javed and others 2013 SCR  576
  388. S. 42 r/w Ss. 302/109, APC — Qanun-e-Shahadat Order, 1984, Art. 129(G) — Occurrence of murder —Impugned conviction/sentence of death as Tazir — Withholding the best evidence by prosecution — Inference — Court can draw an inference against the party who did not produce the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it — In instant case be best available evidence which could be produced by prosecution but the same had not been done for the reason best known to the prosecution — An eye-witness who had seen the entire incident was not produced, his non-production would obviously given rise to an adverse presumption against prosecution — Impugned death sentence was convicted into life imprisonment by Supreme Court. CRIMINAL TRIAL — (Withholding the best evidence) In instant case of murder, prosecution had not produced the best available evidence in the shape off said eye-witness. Supreme Court convicted impugned death sentence into life imprisonment. Sajid Iqbal v. The State  2013 SCR 1123 (B)
  389. —Art. 42-A & 42-B—irrespective of the fact that the authority is President or any other, the law laid down by Supreme Court is binding and all the executive and the judicial authorities are under obligation to act in the aid of Supreme Court. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (E) 2016 SCR 1 Rel
  390. —Arts. 42-B, 43(2-A) and 44—appointment of Judges of the High Court—challenge to—writ—consultative process—proof of—dictum of Supreme Court —non-adherence to— effect of–learned Judges in the High Court themselves observed that the procedure adopted  for consultation is not in accordance with the guidelines given in Muhammad Younas Tahir’s case but despite that allowed such process to remain in field—if the High Court had reached the conclusion that the dictum laid down by Supreme Court has not been followed in letter and spirit then it was the constitutional obligation of the High Court to abolish such process; but the learned High Court tried to give the legal cover to such an invalid process which is very undesirable—the consequences of such findings may be very hazardous— the High Court shall take care in future while dealing with the matter of constitutional obligations. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (K & L).
  391. —Art. 42-B—judgment of Supreme Court—binding on all the Courts of Azad Jammu & Kashmir. Tariq Mehmood Mirza & 9 others v. Azad Govt. & 6 others 2020 SCR 538 (B)
  392. —Art. 42-D— Supreme Court has got powers to review any judgment or order passed or made by it, subject to the provision of an Act of Assembly and of any rules made by it. Kamran Ali & 3 others Versus Abdul Qudoos & 9 others 2021 SCR 501 (A)
  393. —Art. 42-B—stare decisis— every decision of Supreme Court is binding on all Courts in AJ&K if a question of law is decided or the decision is based on the principle of law or it enunciates a principle of law—it is  prerogative of the Supreme Court to interpret law and all  lower Courts are bound by law  so declared and settled by Supreme Court—principle of stare decisis is meant to create certainty in judicial pronouncements in the matter of similar nature–the principle of stare decisis means to adhere to precedent and not to unsettle things already established through previous pronouncements. Mohammad Ibrahim Ahmed Saeed Versus Nusrat Parveen & another 2021 SCR 735 (B) 2018 YLR 1985 rel.
  394. —Art. 42-D—Supreme Court Rules, 1978—Order XLVII–review jurisdiction—exercise of— purpose of review is limited to remedying an apparent error or the resultant grave injustice —the Supreme  Court is restricted in  exercise of the power of review if there is an error apparent on the face of the record or in accordance with the provisions of Order XLVII of CPC—the power to review the own decisions is a protective measure against the fallibility of the apex institution in judiciary  to ensure the delivery of complete justice and for doing the same the law has provided ample powers to the Supreme Court to rectify the error apparent on the face of record. M. Tabassum Aftab Alvi  v. Raja Waseem Younas & other 2022 SCR 1 (A)
  395. —Arts. 42-D, 43(2-A) and 43(4)— offices of Chief Justice and Judge of High Court—distinction of—review of judgment—in judgment under review supreme Court held that if the appointment of a Judge of the High Court is defective, then consequently his elevation to the office of the Chief Justice also becomes faulty as every structure has to stand on its own foundation—held: in view of the mechanism provided in the Constitution, not only the offices of the Judge and the Chief Justice are separate from each other rather the foundations of both the positions are also independent—when the foundations of both the structures are made independent then by abolishing foundation of one structure, the other structure constructed over a separate foundation cannot be eliminated automatically. M. Tabassum Aftab Alvi v. Raja Waseem Younas & other 2022 SCR 1 (F)  PLD 1976 SC 315 Ref —Arts. 42-D, 43(2-A- , 43 (4) & (5) and Art. 44—writ–appointment of Judge—challenge to—offices of Judge and Chief Justice of High Court—distinction of—pensionary benefits –award of—review jurisdiction—exercise of—the appointment of Chief Justice of High Court is not a promotion rather for appointment as Chief Justice, the consultative process, advice, oath and appointment  etc. are separate—respondent did not challenge the appointment of petitioner as Chief Justice—a right had been accrued to him—depriving the petitioner of the accrued rights of pensionary benefits will be against the interest of justice especially when no one objected to the validity of subsequent induction of petitioner as Chief justice. M. Tabassum Aftab Alvi    v. Raja Waseem Younas & other 2022 SCR 1 (H & I)
  396. Sections 42,43, 50 & 50-A — appointments to various offices — advice by the Council — concept of panel — consultation — Held: in the matters of the appointment of Judge of Supreme Court, Judge of High Court, Chief Justice of High Court where the President has to appoint Judge on the advice of Council and consultation with the Chief Justice of AJ&K, the Chief Justice of High Court AJ&K, advice cannot be issued outside the panel of the eligible persons proposed by the Chief Justice, but in the matter for appointment of Chief Justice, AJ&K under section 42, Chief Election Commissioner under section 50 & Auditor General under section 50-A, there is no concept of consultation — Further held: when there is no concept of consultation, it would  not be said that while issuing advice for appointment of Chief Election Commissioner, the advice has to be tendered by the Council from the panel suggested by the President. AJK Council v. AJK Govt. 2016 SCR 145 (E)
  397. Ss. 42(4) & 43 (2-A) — Constitution of Pakistan, Arts. 177 & 193 — High Court and Supreme Court of Azad Jammu and Kashmir — Appointment of Judges — Procedure — Word “consultation” — Connotation — ‘Consultation’ occurring in Ss.42(4) and 43(2-A) of Azad Jammu and Kashmir Interim Constitution Act, 1974 was used in similar sense as used in Arts. 177 and 193 of the Constitution of Pakistan — Consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint or arbitrariness or unfair play — Principles laid down by the Supreme Court of Pakistan in the case of Al-Jehad Trust v. Federation of Pakistan [PLD 1996 SC 324] were fully applicable in case of the appointments of Judges and Chief Justices of the Supreme Court and High Court of Azad Jammu and Kashmir. Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (H&AA)
  398. Ss 42 & 44 — See Azad Jammu and Kashmir (Terms and Conditions of Service) Rules, 1977, R. 9. Riaz-ul-Hassan v. Azad Government 2012 SCR 17
  399. Ss. 42 & 44 — Civil Procedure Code (V of 1908), O.XLI, R.18 — Appeal against order of High Court, whereby appeal was dismissed for non-compliance of the Court order — During the proceedings of the appeal an interim order was recorded to the effect to deposit process fee and furnish fresh address of one of the respondents — Two respondents  died, during the proceedings and appellant had not filed application for impleading their legal heirs — Sufficient time was given to the appellant to file fresh addresses of said respondents, deposit of process-fee and impleading of legal heirs of deceased respondents — More than sufficient time was granted to the appellant to do the needful, but despite passage of more than two years, he had failed to do the needful — Appellate Court, under O.XLI, R.18, C.P.C. was vested with express powers to the effect that where on the day fixed, or any other day to which the hearing could be adjourned, it was found that the notice to the respondent had not been served in consequence of the failure of the appellant to deposit, within period fixed, the sum so required to defray the cost of serving the notice, the court could make an order that appeal be dismissed — Numerous adjournments were granted for said purpose, and even last and final opportunity on cost was also granted, but the order of High Court had not been complied with — Impugned order of High Court, in circumstances, was in accordance with codal provisions as well as the principles of justice — Appellant having failed to make out any legal ground for interference of Supreme Court, appeal was dismissed. Muhammad Mirza Khan v. Muhammad Shafi Khan and others 2012 SCR 87
  400. Ss. 42 & 44 — See Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 41. Muhammad Sharif Khan v. Custodian of Evacuee Property AJ&K 2012 SCR 99
  401. Ss. 42 & 44 — Writ Petition — Maintainability — Failure to array necessary party in writ petition — Appellant in writ petition filed before High Court had challenged order passed by Member Board of Revenue in which he requested for setting aside said order, but the Board of Revenue was not arrayed as party in the petition — Appellant, at leave granting stage before the Supreme Court moved an application for arraying the Board of Revenue as party, which application was disallowed — If an order of an authority was challenged in the writ petition; and that authority had not been arrayed as party, the writ petition was not competent and was liable to be dismissed — Last order which was challenged in the writ petition having been passed by the Board of Revenue and Board was not arrayed as party in the writ petition, writ petition which was not properly constituted, was liable to be dismissed. Siraj Din v. AJ&K Government 2012 SCR 181  Kh. Ghulam Qadir and 5others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161 and Zahid Mehmood Shah and 24 others v. Azad Govt. and 14 others   2001 SCR 159(Sic) rel.
  402. Ss. 42 & 44 –Appeal to Supreme Court — Scope — Point not raised in the High Court could not be raised in appeal before the Supreme Court. Bashir Hussain v. Custodian of Evacuee Property, AJ&K Muzaffarabad 2012 SCR 384 (B)   
  403. Ss. 42, 44 — Mirpur University of Scienceses and Technology Ordinance, 2011, Ss. 3, 41(2) — Appellant was appointed as Vice-Chancellor, Mirpur University of Science and Technology — Respondent challenged said appointment notification by way of writ petition in High Court claiming that he was Ph.D. while appellant who had been appointed as Vice-Chancellor was simple M.Sc. — High Court initially sought parawise comments from respondents and after hearing parties admitted writ petition for regular hearing — Impugned admission order — It was argued that alternate remedy by way of appeal was available to said respondent and in presence of alternate remedy, writ petition was not maintainable — Validity — Availability of alternate remedy was an important question involved in instant case which had to be resolved by High Court — Without first having wisdom of High Court, it was not advisable for Supreme Court to decide same — In-extra-ordinary jurisdiction, High Court has to examine the case in the light of documents, affidavits and law involved in the case — If it appears to the Court that interpretation of relevant law is involved in writ petition as the question whether law has been violated or not or an order passed by an authority in connection with the affairs of the State in a legal order or is passed in violation of law then the High Court can admit the writ petition for regular hearing and issue notice to the other party — High Court while admitting writ petition applied its mind thoroughly and reached the conclusion that ‘‘the points raised in the petition and agitated at the bar merit consideration and need detailed examination’’ — It is not necessary for High Court at time of admission of writ petition for regular hearing that it shall discuss all the relevant law which has to be discussed at the stage of final adjudication — It is sufficient that the Court after detailed examination reached to the conclusion that law points were involved for resolving controversy in writ petition — Civil appeal dismissed. APPOINTMENT — (Admission of writ petition for regular hearing) Appointment of appellant as Vice-Chancellor Mirpur University was challenged. High Court after calling para-wise comments and preliminary hearing, admitted writ petition for regular hearing. Discussion on all the points of law was not required. Supreme Court dismissed appeal against impugned order. Prof. Eng. Naib H. Vice Chancellor v. Prof. Eng. Dr. M. Riaz Mughal 2013 SCR 1 (B)  2011 SCR 59 ref.
  404. Ss. 42, 44 — Appointment — Surplus pool employee — Adjustment — Appointment of said respondent as Naib Qasid was made after adopting  due course of law and on recommendation of concerned Selection Committee — Respondent became surplus and he was placed at disposal of DEO School (Elementary) — Instead of adjusting surplus employees, official respondents advertised one post of Naib Qasid inspite of fact the said respondent had repeatedly asked Department for his adjustment — Held: Said act of department was illegal which seemed to be based on mala fide and same was done to accommodate person of their own choice — High Court while allowed writ petition had rightly quashed advertisement — Even otherwise, there was no fault on part of respondent to become surplus rather it was due to fault of department — No person can be penalized for the fault of the Department — Department was under obligation to adjust surplus employees at first against vacant posts instead of advertising same — Civil appeal was dismissed by Supreme Court. APPOINTMENT — (Surplus pool) Instead of adjudging respondent/Naib Qasid/Pool employee post was illegally advertised to accommodate a favourite person. High Court had correctly quashed advertisedment while allowing writ petition — Appeal was dismissed by Supreme Court. Shahzad Gillani v. Sheraz Ahmed and 5 others 2013 SCR (SC AJ&K) 145
  405. Ss. 42, 44 — AJK Board of Revenue Act, 1993, S. 6 — Civil Procedure Code, 1908, O. 1, R.10 — Board of Revenue — Impleadment as party to writ petition — Laches — High Court dismissed application for impleading Board of Revenue as respondent-party on ground that same was time-barred — Consequently writ petition was also dismissed for non-impleadment of necessary party — Impugned judgment — Board of Revenue was not arrayed as party in writ petition by petitioner and after a lapse of about five years, they wanted to implead Board of Revenue as respondent which was not permissible under law — Board of Revenue was a necessary party no effective order could be passed — Petitioner failed to make out any question of public importance — Petition for leave to appeal was dismissed by Supreme Court. WRIT PETITION — (Impleadment of party) Board of Revenue was a necessary party in absence of which no effective order could be passed. Writ petition was rightly dismissed by High Court. Leave to appeal was refused. Abdul Rasheed and 4 others v. Member Board of Revenue, AJK, Muzaffarabad and 33 others 2013 SCR 222
  406. Ss. 42, 44 — Cancellation of allotment — Fraud — Relief — Appellants were not found eligible for allotment of land as they were never found in possession of any portion of land — High Court while deciding writ petition had rightly held that possession of appellants at the relevant time on the land was a condition precedent for the allotment — Allotment was procured by way of fraud and misrepresentation — Same was done with collusion of the official, of Revenue Department and the Development Authority — Fraud vitiates the most solemn proceedings, if any transaction is made through fraud, that has no foundation to stand — Moreover, before cancellation of allotments, appellants, were given opportunity of hearing during which they failed to establish their claim — Held: Appellants had procured allotments with collusion of the officials of the Revenue Department and Development Authority, therefore, they were not entitled to any relief — No illegality was found by Supreme Court in impugned judgment passed by High Court while dismissing writ petition — Civil appeal dismissed. CANCELLATION OF ALLOTMENT — (Fraud) Appellants had procured allotment of disputed land with collusion of officials of the Revenue Department Authority, therefore, they were not entitled to any relief. High Court correctly dismissed writ petition. M.Younis Khan and 3 others v. Development Authority, Muzaffarabad & 8 others 2013 SCR  238 (C)
  407. Ss. 42, 44 — Ad-hoc appointment — Seeking permanent induction — Appellant claimed that after removal of the named appointee from service, he was entitled to be appointed on vacant post with further assertion that fresh advertisement by Public Service Commission was without lawful authority — High Court dismissed writ petition — Analysis — Appellant, who was an ad-hoc Assistant Engineer in the Electricity Department also appeared in test and interview conducted in response to said advertisement — Appellant’s name was not recommended by the Public Service Commission in the list of successful candidates — After expiry of limitation for filing appeal in Supreme Court, said judgment of High Court to that extent attained finality — Neither appellant had any genuine cause of action for filing writ petition in High Court to seek direction for his appointment nor he could move the Court against Public Service Commission for restraining it from re-advertisement of the post of Assistant Engineer while fell vacant due to termination of named employee — Thus, appellant had acquiesced his right impliedly by his own conduct — Said post which fell vacant due to termination of mentioned appointee, was rightly advertised by Public Service Commission — Under the law the post falling vacant due to removal of said employee could not be filled in by the candidates who appeared in previous test and interview conducted by the Public Service Commission — In instant case, Public Service Commission — Commission handed down recommendation on 24-02-1999 whereas said employee was removed from service on 10-06-2003, after almost 4 years period, thus, claim of appellant failed on that ground as well — Ad-hoc appointment could not be made basis for permanent induction in civil service — Posts of Assistant Surgeon were only to be filled in by the Public Service Commission and not otherwise — In instant case, Public Service Commission had not recommended name of appellant in merit list of successful candidates, therefore, it could not be held that he had any legitimate right to invoke extra-ordinary jurisdiction of High Court for seeking direction to the Public Service Commission and the Electricity Department for his permanent induction — Even otherwise, case was hit by the doctrine of laches — Post which fell vacant due to termination of said employee could not be given as a gift to appellants because the only process for selection on the vacant post is selection through the Public Service Commission — Appellant had failed to point out any illegality or irregularity in impugned judgment, thus the same stood upheld by Supreme Court — Civil appeal dismissed. AD-HOC APPOINTMENT — (Permanent induction) Ad-hoc appointment could not be made basis for direction by High Court for permanent induction. Writ petition was rightly dismissed. Supreme Court dismissed appeal. Tariq Mahmood v. AJK Govt., Muzaffarabad and 3 others  Tariq Mahmood v. Azad Govt. and 3 others 2013 SCR 306
  408. Ss. 42, 44 — F.R. No. 14 — Right of property — Work Order was cancelled and machinery and other material on site was confiscated — Factual controversy — Remedy — Questions agitated before High Court pertained to factual controversy which could only be resolved after recording evidence which was not the job of the High Court — Proposition of law — Held: Disputed question of fact could only be resolved after recording evidence which was the job of case for which parties had already availed remedy available under law before Court of competent jurisdiction and in that regard matter was sub-judice for adjudication — High Court had rightly dismissed writ petition — Civil appeal was dismissed by Supreme Court. CANCELLATION OF WORK ORDER — (Remedy) Having cancelled the work order of the appellant, machinery on site was confiscated. Since factual controversy was involved and civil suit was sub-judice, High Court had correctly dismissed writ petition. The Eastern Construction Company v. Azad Govt 2013 SCR  548
  409. Ss. 42, 44 — Administration of Evacuee Property Act, S. 43 — Entitlement to allotment of evacuee land — Controversy — Custodian while accepting review petition remanded matter back to Assistant Rehabilitation Commissioner for inquiry — High Court dismissed writ petition thereagainst on ground that no final order had been passed against appellants and in presence of alternate remedy — Validity — No final order had been passed by Custodian — Under the Constitutional provisions, writ petition is only competent where any person performing functions in connections with the affairs of Azad Jammu and Kashmir or local authority has done or is doing which is not permitted by law to do, or is not doing which is required by law to be done, or declare any act done or proceedings taken by such person as illegal, if same are done or taken without lawful authority — It was not the case that Custodian had passed order without lawful authority — In inquiry, equal opportunity of hearing and producing proof in support of respective stand of each of parties was available — High Court had not committed any illegality or irregularity while dismissing the petition in limine —  Civil appeal dismissed. REMAND ORDER — (Invocation of writ jurisdiction) Dispute was with regard to entitlement of allotment. Custodian had remanded case for holding an inquiry. High Court dismissed writ petition against said order being interim in nature. Supreme Court dismissed appeal. Shaukat Ali and 6 others v. Custodian, Evacuee Property, Azad Jammu & Kashmir, Muzaffarabad and 2 others 2013 SCR 1021
  410. Ss. 42, 44 — Civil Procedure Code, 1908, O.XIII, R.2 — Specific Relief Act, 1877, S. 54 — Suit for perpetual injunction — Issues — Production of additional documents — Case was fixed for final arguments where plaintiff moved application for filing copy of said decisions of Commission and collection respectively alongwith copies of Jamabandi and Khasra-Girdawari — Only  reason was given that plaintiff waited to file said copies with the file which could not be inadvertently filed previously — Validity — Plaintiff applicant had not relied upon the said documents in plaint — Said application was ambiguous — It was not clear from application that Jamabandi or Khasra Girdwari which plaintiff wanted to produce in evidence were pertaining to which year and what was relevancy of those documents — Similarly the documents i.e. said decision of the Collector and Commission respectively, were however relevant, what was their relevancy and what was their bearing on fate of case, had not been disclosed by plaintiff — Such a vague application could not be accepted particularly, when applicant-plaintiff had not disclosed any reason that why he failed to bring on record said documents in due course of time — Mere inadvertence could not be ground for allowing the document at later stage — Trial Court committed no illegality while dismissing application for producing copies of documents in additional evidence, therefore, revisional Court was right in declaring the exercise of revisional powers — High Court had illegally accepted writ petition and promoted an opportunity to plaintiff for producing documents in evidence in the interest of justice without assigning any reason as to what sort of illegality had been committed by Trial Court and the revisional Court — Civil appeal accepted. PRODUCTION OF ADDITIONAL DOCUMENTARY EVIDENCE — (Inadvertence) Mere inadvertence could not be a ground for allowing the document at a latter stage. Supreme Court allowed appeal. Nazir Ahmed and 6 others v. Riaz Ahmed and 5 others 2013 SCR (SC AJ&K) 1069 (B)
  411. Ss. 42, 44 — AJK High Court Procedure Rules, 1984 — Acts of Municipal Corporation — Declaration —It was case of appellants that Municipal Corporation/respondent without hearing and taking into consideration application filed by appellant, and other record, illegally transferred disputed piece of land to the mentioned respondent — Writ petition had been dismissed on sole ground that declaration had been sought regarding disputed matter in which Civil Court was only competent forum — Said order had been issued by Municipal Corporation without application of mind — All the material had been oversighted by High Court and the same was not referred in impugned judgment — Impugned judgment was lacking required ingredients in light of peculiar facts of instant case — Opinion of High Court that declaration could only be sought from Civil Court was also not in consonance with Constitutional provisions as well as principles of administration of justice — High Court is also vested with powers to declare any act as without lawful authority — In instant case main grievance of appellant was regarding proceedings conducted by Municipal Corporation which culminated into said order — Said respondent — Corporation was a local authority dealing with affairs of AJK — Its acts were subject to judicial review — It was not a case to be thrown out merely on pretext that being involving question of facts, writ jurisdiction could not be exercised — Impugned order of Municipal Corporation when exercised in light of rent, appeared to be arbitrary, capricious and passed without application of mind — In instant case, Municipal Corporation had failed to discharge its duties according to law, therefore, it was not case where declaration from Civil Court had to be sought — In view of special facts of case, Municipal Corporation itself had to settle the controversy among parties — Respondents were directed to determine question of hardship within provided time period according to law — Civil appeal accepted. ACT OF MUNICIPAL CORPORATION — (Declaration) There was dispute with regard to incorporation of inheritance share in the record of Municipal Committee. High Court had wrongly dismissed writ petition on ground that matter fell within domain of Civil Court. Supreme Court allowed/appeal. M. Azam Tahiri v. MCM, Mirpur through Administrator, Corporation, Mirpur and 5 others 2013 SCR 1059 (B)
  412. Ss. 42,  44 — AJK Rent Restriction Act, 1986, Ss. 14(3)(A)(ii) (C), 2(2) — Eviction of tenant — Grant of personal requirement — Eviction — Rent Controller accepted eviction petition which determinations, were upheld by appellate authority — High Court dismissed writ petition on ground that findings rendered by Rent Controller and affirmed by appellate authority were based on record — Principal of law-Findings of facts recorded by a Tribunal of exclusive jurisdiction based on record cannot be disturbed in writ jurisdiction  — Held: Rent Controller had considered whole evidence and drew conclusion on basis of record, therefore, such findings were immune from interference in writ jurisdiction — In instant case landlord/respondent had established that he was running the business of sanitary in a shop with two stores, which he had not sold — It was got vacated by landlord for reconstruction and landlord constructed shops which were much smaller in size, which could not fulfill requirement of respondent — Appellants failed to prove that respondent had sold shops — One of Aws admitted that landlord remained demanding possession of shop on ground of personal requirement — Civil appeal dismissed. EVICTION OF TENANT — (Findings of facts) Rent Controller and Appellate Authority has passed order of eviction after appreciation of entire evidence which findings were immune from interference in writ jurisdiction. Supreme Court dismissed appeal. Waqar Ahmed v. Kh. Mumtaz Ahmed 2013 SCR 1202 (B)
  413. Ss. 42, 44, 47 — AJK Service Tribunals Act, 1975, S. 2 — Promotion — Retired Civil Servant — Promotion order was recalled by the authority through Notification dated 17-09-2003 — Whereas appellant retired from service w.e.f. 29-06-2003 — High Court dismissed writ petition on ground of incompetency and laches — Validity — Regarding matters falling in the exclusive jurisdiction of the Service Tribunal, remedy of writ is not available in the High Court — Whether a person is holding the post or has been a member of Civil Service (retired), for the redressal of grievance arising from any departmental order regarding the terms and conditions of the service, has to approach the Service Tribunal through appeal — Contention of appellant that in case of retired civil servant, Jurisdiction of High Court was not ousted, was not acceptable — High Court had not committed any illegality while dismissing writ petition in limine — Civil appeal dismissed. RETIRED CIVIL SERVANT — (Jurisdiction of High Court) Dr. Ch. M. Akram Khan, Retired Director General, Health, Mirpur v. Azad Govt. 2013 SCR 822 (A)
  414. Ss. 42, 56-A — Limitation Act, 1908, Art. 144, S. 28 — General Clauses Act, 1897, S. 6 — Suit for adverse possession — Amended provision — Effect — After said amendment, the suit on the basis of adverse possession could not be succeeded except the true owner admits the claim of the person having the possession of the suit property adversely — In instant case suit on basis of adverse possession could only be succeeded or decreed if their claim is admitted by respondents-owners in the Court — Held: No decree in suit for adverse possession could be passed on basis of law which was no more available on the statute book — High Court while accepting second appeal had rightly dismissed suit for adverse possession filed by appellants-plaintiffs — Civil appeal dismissed. ADVERSE POSSESSION — (Amended provision) No decree in suit for adverse possession could be passed after amended provisions of the Limitation Act. Supreme Court dismissed appeal. M. Abbas and 5 others v. M. Rafique Khan (Deceased)  2013 SCR 1153 (B)
  415. S. 43 — High Court of Azad Jammu and Kashmir — History of establishment and procedure of appointment of Judges recorded. M. Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (A)
  416. S. 43 — (2-A) — If this sub-section is found to be in applicable to appointment of an Additional Judge then the result would be that Additional Judge would be appointed without the consultation of the Chief Justices of the Supreme Court as well as of the High Court- In the civilised world the choice of a Judge of a Superior Court is dependant on prior consultation of the Chief Justices and it is only after that requirement has been fulfilled that a person can be appointed as Judge of Superior Court — If sub-section (6) is to be treated independent of sub-section (2-A) consultation with the Chief Justices would be done away with and all that would be required would be that a President would have choice to appoint any person who fulfils the basic qualifications, as an Additional Judge. Held that: It is well settled that the President has no occasion of knowing of law and other trails of the concerned person — The appointment-personality of a Judge of a High Court is the outcome of evaluation made by the Chief Justices on the basis of first hand knowledge which they gain by dealing such a subordinate judicial officer– This is the modus operendi which has been evolved for making choice of a Judge. Ghulam Mustafa Moughal v. AJK Govt. 1993 SCR 131 (E)
  417. S. 43(2-A) — See Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42(4). Muhammad Younas Tahir  v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (E&F)
  418. S. 43(2-A) — High Court of Azad Jammu and Kashmir — Appointment of Judges — Procedure —  Consultation of the President with the Chief Justice of High Court and the Chief Justice of Azad Jammu  and Kashmir — Scope — President to consult both Chief Justices at the same time — De  facto, doctrine of — Applicability — President of Azad Jammu and Kashmir consulted the Chief Justice of High Court and the Chief Justice of Azad Jammu and Kashmir in December 2005, for filing vacancies of Judges of the High Court — Chief Justice of the High Court recommended names of appellants but the Chief Justice Azad Jammu and Kashmir did not agree to recommend said names — Subsequently, new President was elected and in December 2006, Chief Justice of Azad Jammu and Kashmir at that time (same judge/person who was Chief Justice of High Court during consultation by the previous President) recommended names of appellants for appointment, while Acting Chief Justice of the High Court at that time was not consulted — Question was as to whether such consultation made by former President with a person in the capacity of Chief Justice of High Court and the consultation by the new President, made with the same person in the capacity of Chief Justice of Azad Jammu and Kashmir, after a period of one year, could be treated as valid consultation —  Scheme of Azad Jammu and Kashmir Interim Constitution Act, 1974, showed that both the Chief Justices were to be consulted at the same time otherwise the consultation would be meaningless — In the present case, consultation with both the Chief Justices was not simultaneous but at different times involving a period of more than one year, therefore, it could not be said to be a valid consultation, especially after the elevation of the Chief Justice of the High Court to the Supreme Court, no consultation was made with the then Acting Chief Justice of the High Court — Appointment of a Judge in a High Court had to be made when there was a vacancy and both the Chief Justices, i.e. the Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir had to be consulted at the same time — Consultation with one person in different capacities at two different times was against the prudence and canons of interpretation — Appointment of appellants (Judges) was made while considering the recommendations made by the Chief Justice of the High Court in December, 2005 and the recommendations made by the same person in the capacity of Chief Justice of the Azad Jammu and Kashmir in December, 2006 — Such consultation was not a meaningful, purposive, consensus-oriented and valid — Names of appellants had not been recommended by Chief Justice of the Azad Jammu and Kashmir during  December 2005, and such opinion was not only to be preferred but it also excluded the appellants from being appointed as Judges of the High Court — Appellants (Judges) were appointed through notification and on annulment of said notification, benefits derived by appellants could not be ordered to be paid back on the basis of de facto doctrine as they had validly done the acts and performed functions under the colour of lawful authority — Supreme Court directed that in future all the appoints of Judges and Chief Justices in the Supreme Court and the High Court should be made in the light of the dictum laid down by the Supreme Court of Pakistan in the case of Al-Jehad Trust v. Federation of Pakistan [PLD 1996 SC 324] — Appeals were dismissed, in circumstances. Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (F,L,M,N,O, Q,R,V,W,Y,Z,BB,&CC)
  419. S. 43(2-A) — High Court Judge — Appointment in contravention of constitutional provisions — Acts done and functions performed during such appointment — Validity — Contravention of the constitutional provisions invalidates the appointments but the acts done and functions performed by a person who held that office under the authority of law continue to be valid and effective. Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (X)
  420. S. 43(2-A) — High Court of Azad Jammu and Kashmir — Appointment of Judges — Procedure —Consultation — Opinion of Chief Justice of Azad Jammu and Kashmir — Preference — Scope — Opinion of the Chief Justice of Azad Jammu and Kashmir had to be preferred — Where the Chief Justice of Azad Jammu and Kashmir did not think that a person was suitable to be appointed as Judge of the High Court, such person could not be considered for appointment as a Judge. Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (S)
  421. S. 43(2-A) — High Court of Azad Jammu and Kashmir — Appointment of Judges — Procedure — President to consult Chief Justice of High Court and Chief Justice of Azad Jammu and Kashmir — Failure/delay in appointment of permanent Chief Justice of High Court — Consultations of the President with Acting Chief Justice of High Court in such circumstances — Scope-Where Chief Justice of the High Court had been elevated as Judge of the Supreme Court, the next senior Judge who had expectancy of becoming a permanent Chief Justice was not appointed as permanent Chief Justice but was appointed as Acting Chief Justice, and was left to work in the same capacity till his retirement, then the President had two options; either he could leave the post vacant or to consult the Acting Chief Justice — If the permanent Chief Justice of High Court was not appointed in a reasonable time, then the President had no option except to consult the Acting Chief Justice for the purpose of appointment of Judges — Consultation made by the President in such circumstances with the Acting Chief Justice could be termed as a valid consultation — In the present case, Acting Chief Justice of High Court was appointed in October, 2006 and remained working in the same capacity till his retirement in December, 2009 — Azad Jammu and Kashmir Council which had to issue advice to the President for appointment of permanent Chief Justice failed to perform its constitutional duty — Since there was no permanent Chief Justice, the requirement of the Constitution was that the President should have consulted the Acting Chief Justice of the High Court, which would have been valid consultation — Appeals were disposed of accordingly. Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (P)
  422. Section 43(9) read with section 3 of Civil Servants Act, 1976 — Appellant claimed pay and privileges including increase in pension as Chairman PSC equal to the Judge of the High Court — Under section 43 (9) of the Interim Constitutions Act, the remuneration and other  terms  and conditions of service of Judges of High Court, are provided in fifth schedule — the remuneration and terms and conditions of Judges of superior Judiciary of Pakistan are provided in fifth schedule of the Constitution of Islamic Republic of Pakistan, 1973 — Under para 2 of fifth schedule of Constitution ‘‘High Court Judges (leave pension and privileges) order 1997 issued. The phraseology applied in the AJ&K Interim Constitution Act, the Constitution of Pakistan and the Presidential order, 1997, clearly conveys that the words and expressions ‘‘salary, pension, privileges and terms and conditions of service of Judges of the High Court’’ are separately used, which gives separate meanings, impacts and effects. For a specific purpose the definition of the word ‘‘remuneration’’ has been given in the Constitution. Held: The spirit of the legal terms applied in the Constitution in relation to remuneration, privileges and terms and conditions of Judges of superior Courts of Pakistan is somewhat different as compared to the phraseology applied in the Civil Servants Act and Rules made thereunder — Under section 3 of the Civil Servants Act, the term and Conditions of Civil Servants are provided — The legal phrase ‘‘terms & Conditions of Civil Servants’’ applied in the Civil Servants Act, includes all the matters from appointment till retirement including pension and gratuity — Whereas this term in relation to Judges of the High Court in sub-section 9 of section 43 of the Interim Constitution Act is applied for limited purposes disjunctive of the expression remuneration (pay and pension ) — In fifth schedule terms ‘‘salary, allowances, privileges and pension’’ have been independently and separately applied, which means that every word has a separate connotation, impact and effect. Bostan Ch. v. Audit and Accountants Deptt.& 6 others 2011 SCR 279 (A)
  423. S. 43 (6) – An Additional Judge can only be appointed if a Judge is not functioning. If a Judge is unable to hear a case it cannot by any stretch of imagination he said that he is not able to perform his functions —  meaning thereby that an Additional Judge has to sit in the High Court in place of a Judge like a substitute. The two cannot take the field together — The respondents were appointed to hold office virtually till attaining the age of 62. The order was in total disregard of every part of sub section (6). Ghulam Mustafa Moughal v. AJK Government 1993 SCR 131 (F)
  424. Section 43(7) — Chief Election Commissioner (Terms & Conditions) Act, 2000 — Chief Election Commissioner (Terms & Conditions) Act, 1992 — appointment of the Judge High Court as Chief Election Commissioner — Section 43(7) (A) specifically debars a Judge of the High Court from holding the office of profit in the service of AJK, if his remuneration is thereby increased — A Judge of the High Court may be appointed as Chief Election Commissioner in the light of the provisions contained in Act, 1992 and Act, 2000 — if a serving Judge is appointed as Chief Election Commissioner, he will not receive his remuneration in addition to the salary, he is already receiving. Presidential reference v. — 2015 SCR   1249 (Q)
  425. Section 43(7) — appointment of Judge of the High Court as Chief Election Commissioner — A Judge of the High Court in addition to his salary, if receives the salary as Chief Election Commissioner, then his appointment cannot be made, but if under law Chief Election Commissioner shall receive only one salary then a serving Judge of the High Court may be appointed as Chief Election Commissioner — Clause (B) of sub-section 43(7) does not relate to the office of profit in the service of AJ&K. It relates to any other position like a sitting Judge of the High Court cannot hold the office of Director of a Company which carries the right of remuneration — Held: A sitting Judge of the High Court can validly be appointed as Chief Election Commissioner. Presidential reference v. —2015 SCR 1249 (S)
  426. —Article 43(1-A)—Constitution of benches in the High Court—petition against Chief Justice—difference of opinion–argument that Bench can only be constituted by Chief Justice and none else can exercise these powers—No doubt in ordinary practice and course of law, it is prerogative of the Chief Justice to constitute the Bench—the provisions of Article 43(1-A) do not expressly provide that in case of difference of opinion, the matter shall be referred to the third Judge by the Chief Justice, especially, when the Chief Justice himself is respondent and one of the Judges has issued writ of quo-warranto against him—special eventuality required special wisdom and action to come out of a dead lock situation— M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1(B & C)
  427. —Article 43(2-A)—appointment of Judge of High Court–rule of Primacy—application of—according to the constitutional provisions the Chief Justice is the paterfamilia of the judiciary and his opinion has to be given due weightage preference and deference—in case of difference between consultees, the appointing authority after due comparison and appreciation, by applying the Rule of Primacy, may seek advice of the council—the eventuality of Rules of Primacy arises when during the process of consultation after reasonable passing of information between the consultees the consensus could not be developed—in such situation, it is the prerogative of the appointing authority to apply the Rule of Primacy- M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1 (R)
  428. —Article 43 (2-A), appointment of judge of High Court–procedure for—argument that the scheme and phraseology of constitutional provisions requires appointment after consultation and it is immaterial whether the constitution is made after or before advice—Held:  their version is consistent neither with the custom, practice and procedure prevailing since long nor with the spirit of constitution—if the constitutional provisions are considered in reverse order the position of ‘advice after consultation’ becomes clear—it is not only longstanding practice and manner adopted for appointment of Judges but also appears to be in accordance with the spirit of constitution in view of the dignity and independence of judiciary—for seeking the advice of the council, the consultation of the appointing authority with the Chief Justice is prerogative–the Chief Justices in view of the practice and ground realities, are only the concerned persons who are the best Judges of the ability, mentality and other required qualities of the persons to be appointed—Neither the president nor the council has other alternate or direct means or source to Judge the required abilities for judgeship– M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1 (G & H)
  429.  —Article 43 (2-A) … appointment of Judge of High Court–for consideration of a person to be appointed as Judge, the consultation of Chief Justice of AJ&K and Chief Justice of High Court is most basic pre-requisite—this constitutional spirit can only be fulfilled if the appointing authority has sought an effective, meaningful, purposive, consensus oriented and simultaneous consultation with the Chief Justices. M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1(I) 2012 SCR 213 ref
  430. —Article  43(2-A)—appointment of judge of High Court –mode for—the appointment of Judge of the High Court shall be made by the president on the advice of the council after consultation with the chief Justice of the AJ&K and High Court–the appreciation of these provisions in reverse order clearly proves that ‘on the advice of the council after consultation with the consultees’—the consultation is pre-requisite for seeking advice of council—it is long standing practice spreading over decades that for appointment of the Judge of the High Court the process of consultation has always been completed prior to seeking advice–there is no concept of seeking consultation after receiving the advice of the council. M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1(K) 2012 SCR 213 ref
  431.                 —Article 43 (2-A)—appointment of Judge of High Court –consultation pre-requisite—the consultation with the Chief Justices is not mere a formality rather it is most basic requirement–it is also in consonance with the ground realities because the council or its chairman has no direct source or means to determine the eligibility and suitability rather the same can only be determined in the light of consultation made—Held: the advice of council without completion of the consultative process is not constitutional and enforceable—on the basis of such advice no one can be validly appointed as Judge of High Court.  M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1 (L)
  432.  —Article 43(2-A)—Judges appointment—High Court–pre-requisite for advice—people of state have high respect and regard for the office of Prime Minister of Pakistan/Chairman council—the advice of such respected office has to be given due deference—the non-implementation of such advice by President on any technical ground will not create any good taste—all efforts should be made to conduct proceedings strictly in accordance with the spirit of constitution— each and every requirement must be fulfilled before seeking advice from the council— M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1 (M)
  433.  —Article 43(2-A)—appointment of Judge of High Court— consultative process—mode of—for consultation, no specific mode has been prescribed—it depends upon the appointing authority and the consultees that in what manner and mode they fulfil the ingredients of an effective, meaningful, purposive, consensus, oriented and simultaneous consultation—mere sending a panel is not sufficient—the appointing authority and consultees may hold joint meeting or adopt any other reasonable manner for passing and exchange of information—even verbal mode of consultation can be appointed but there must be such practical steps proving the appointing authority and the consultees have availed the sufficient opportunity and adopted mode of making the consultation effective, meaningful, purposive, consensus and simultaneous. M. Tabassum Aftab Alvi v. Raja Waseem Younis & 6 others 2020 SCR 1 (N)
  434. —Art. 43 (2-A)—appointment of Judges of the High Court—consultation—meaning of—worthy President is the appointing authority—appointment shall be made on the advice of the Council after consultation with the Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court—the words ‘after consultation’ used are very significant—provide a specific process for consultation–consultation with the Chief Justice of AJ&K and Chief Justice of the High Court is mandatory Constitutional requirement which must be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play—the President shall initiate the process of consultation and  appointment shall be made after consultation with both the Chief Justices at the same time—worthy President has to play the role of bridge among the consultees to achieve the goal of consensus. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (A & B)
  435. —Art. 43(2-A)—appointment of Judges of the High Court–consultative process—rule of primacy—application of—under law to achieve the goal of mandatory, effective, meaningful, purposive and consensus-oriented consultation, the first priority is to develop the consensus between the consultees by mutual discussion—however, after making all the efforts if the opinion of the Chief Justice of Azad Jammu and Kashmir not supported by the Chief Justice of the High Court, then the opinion of Chief Justice of Azad Jammu and Kashmir shall be given primacy. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (N) PLD 2009 SC 879 ref.
  436. —Art. 43(2-A)—appointment of Judges of the High Court–consultation—mode of—the consultation must be effective, meaningful, purposive, consensus oriented, simultaneous, leaving no room for complaint of arbitrariness or unfair play—if questions are raised it is the responsibility of the concerned authority to substantiate that how the requirement of law has been fulfilled. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (F)
  437. —Art. 43(2-A)—appointment of Judges of the High Court–the consultation with both the Chief Justices should be made at the one and the same time, otherwise the same will be meaningless. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (G)
  438. —Art. 43(2-A) —appointment of Judges of the High Court—challenge to—consultation—mode of—no specific mode provided in the Constitution, however, the Court shall have to scrutinize whether the requisite consultation has taken place or not, keeping in view the substance of the events to reach the conclusion that the consultation is meaningful, purposive and consensusoriented. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (H)  AIR 1953 Madras 392 & 1979 PLC 416 rel.                                                                                         
  439.   —Art. 43 (2-A)—appointment of Judges of the High Court—challenge to—consultation—proof of—photocopies of a paper and call summary data placed on record regarding consultation—another photocopy of paper mentioning some dates to substantiate that on said date, the meetings as well as telephonic conversation in connection with the consultation were held, is brought on record—paper is not  supported by any documentation–even the same does not speak that any joint meeting was ever held—this document does not fulfil the requirement of law—Held: the summary of call history of the personal mobile number of Worthy President is not sufficient proof that the calls were made in connection with the consultation or the consultation as prescribed by law, was made through telephonic calls. Sardar Javaid Sharif v. Azad Govt. & 47 others 2020 SCR 443 (I & J)
  440. —Arts. 43(2-A) & 43-A—Chief Justice & Acting Chief justice of High Court—mode of appointment—completely different— Acting Chief Justice is appointed by the President himself, whereas, the Chief Justice is appointed by the President on the advice of the Chairman of the Council, after consultation with the Chief Justice of AJ&K—appointment of the acting Chief Justice, not made under Art. 43 ( 2-A) hence modification of notification of retirement as Chief Justice of the High Court amounts to amend the Constitution. Khawaja Aamir Ahmed Versus Azad Govt. & 6 others 2021 SCR 58 (M)
  441. —Arts. 43(2-A), 43(4) and 43(5) —offices of the Chief Justice and Judge of the High Court—distinction of— separate consultative process for the offices of Chief Justice and Judge High Court and sperate oaths are provided—the expression, ‘enters upon his office’, given in the Art. 43(4) carries the significance— a person who is appointed as a Chief Justice is required to take separate oath— he shall be deemed to have entered upon his office on the day on  which he takes the oath, which demonstrates the separation of the office of the Chief Justice from the office of  the Judge— under proviso to Art. 43(5), the President may appoint a retired Judge of the High Court of Pakistan to be the Chief Justice directly—such an eventuality of appointing Chief Justice directly is subject to the non availability of  Judges in the High Court— an opinion can be gathered that if such a clog is imposed that initially the said person shall be appointed as Judge and thereafter, he shall be elevated as Chief Justice then it can be presumed that the invalid elevation in one office may affect the elevation in other office—administrative powers assigned to the Chief Justice also stretch an indication that the office of the Chief Justice is different from the office of a Judge– a person appointed to be a Chief Justice of the High Court can only enter upon his office after making and subscribing the oath required by law despite the fact that earlier he had taken the oath as Judge of the High Court— the imposition of the condition of separate oath is further supportive to the opinion that  office of a Judge and the Chief Justice is different—held: as the consultative process, oath and appointment notifications etc. for the offices of the Judge and the Chief Justice of High Court are separate from each other thus, both the offices are different offices. M. Tabassum Aftab Alvi             v. Raja Waseem Younas & other 2022 SCR 1 (B,C,D & E) 
  442. —Art.  43(5) — pensionary benefits as Chief Justice High Court—appointment of petitioner as Chief Justice of the High Court declared valid and entitled to pensionary benefits—if any question of qualifying service arises, that shall be dealt with in the light of the formula of proportionate pension per annum. M. Tabassum Aftab Alvi v. Raja Waseem Younas & other 2022 SCR 1 (J) –Art. 43 (5) —resignation by a judge—the terms of office of a Judge would come to an end on his resignation—the concept of submission and acceptance of resignation is absent in Art. 43(5) –in case of a Judge, holding the constitutional post, the resignation is unilateral—His resignation is mere an information to the concerned and becomes effective forthwith—the dignity of Judge needs that his resignation should be immune from acceptance. Khawaja Aamir Ahmed Versus Azad Govt. & 6 others 2021 SCR 58 (L) AIR 1978 SC 694 ref.
  443. S. 44 — Writ petition — Under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 only a person aggrieved by the order made by a person performing the functions in connection with the affairs of the State or a Local Authority has been given the right to throw a challenge to it by way of filing the writ petition and get it declared unlawful and of no legal affect. Pir Ali Jan Shah v. Chairman Municipal Committee 1992 SCR 351 (A)
  444. S. 44-Writ — not to lie against a private person. Barkat H. v. Sardar Misri Kh. 1993 SCR 75 (A)
  445. S. 44 — Writ-it is only a person aggrieved by an order made by a person performing functions in connection with affairs of the State or a local authority who has been given a right to through challenge to its validity by way of filing writ petition. Fazal Hussain v. Custodian of Evacuee Property 1993 SCR 127 (A)
  446. S. 44 — Writ. A person who does not come with clean hands to the Court disentitle himself to any relief. Muhammad Mushtaq v. Muhammad Faiz Abbasi & others 1994 SCR 95 (E)
  447. S. 44 — Writ issuance of — Question whether writ could be issued against the Federation of Pakistan in the instant case — It is correct that a writ against a person not residing within the territorial limits of a Court is not competent —This restriction does not apply to the High Court of Azad Jammu and Kashmir and this Court because from section 44 the words “in Azad Jammu and Kashmir” were deleted by an amending Act (Act IX) of 1975 — It is due to this amendment that the Azad Jammu and Kashmir High Court is able to issue writs against the Azad Jammu and Kashmir Council, Chief Election Commissioner, while sitting outside Azad Jammu and Kashmir — Under the Interim Constitution Act, the Government of Pakistan has been invested with certain powers with regard to the affairs of the Azad Jammu and Kashmir — Thus an action performed in exercise of such powers may be open to judicial review if it is shown to be violative of law despite the fact that offices of Govt. of Pakistan are located beyond the territorial jurisdiction of the Azad Jammu and Kashmir. Fedration of Pakistan v. Malik M. Miskeen & others 1995 SCR 43 (K)
  448. S. 44 — Writ — An order which has not yet been issued does not create any legal right — like all other Govt. functionaries the Prime Minister  is vested with the power to reconsider an order made by him. If any warrant is needed for this purpose it can be found in section 21 of the General Clause Act — The Courts cannot take away from the Prime Minister his right to reconsider a decision taken by him. Raja Muhammad Ayyaz Khan vs. Azad Govt. and another 1995 SCR 281
  449. S. 44 — Discretionary relief can only be claimed by a person if his claim is based on bonafide and he comes to the Court with clean hands for enforcement of legal right and not for retention of an ill-gotten gain. Rehana Mahmood and 3 others v. Azad Govt. & 5 others 1998 SCR 82 (D)
  450. S. 44 — Constitution petition — Challenge to establishment of Shariat Court AJK by lawyers — Petition accepted — Appeal against — Question of locus standi raised in appellate forum — Held: It is correct that none of writ petitions, which culminated in impugned judgment, has been couched as a writ of quo warranto but all the same it cannot be said that petitioners-respondents were not aggrieved persons, especially so when apart from being leading members of society, they are practising lawyers and are directly interested in constitutionality of Courts in view of their day to day professional duties —View of Supreme Court on question of locus standi in maintaining a writ petition under section 44 of Interim Constitution Act has been liberal one; if a person shows an injury to his right which may not be injury to a juristic right, he is entitled to invoke writ jurisdiction of High Court under aforesaid provision of law — Therefore, Supreme Court is of the view that writ petitions filed by petitioners-respondents could not be thrown out without going into merits of same on ground that petitioners-respondents were not aggrieved persons within meaning of relevant Constitutional provisions. Azad Govt. v. Genuine Rights Commission AJK 1999 SCR 1 (A)
  451. S. 44 — Writ — Fundamental Rights — Female candidates seeking nomination to M.B.B.S. course against seats reserved for Azad Jammu and Kashmir in different Medical Colleges of Pakistan filed writ petition in High Court seeking direction to Nomination Board concerned to nominate students for reserved seats on the basis of merit irrespective of sex to which a candidate belong — Writ Petition was accepted by High Court and it issued direction prayed for by female students — Apart from allocation of seats on regional basis, Government order was clearly lays down that candidates be selected purely on merit basis — Such order nowhere lays down that the seats which were made available would be divided  between male and female students — Nomination board itself has started practice of dividind seats between male and female students without approval of the Government — Such nomination is thus unlawful — The High Court has thus rightly concluded that action of Nomination Board was without lawful authority and of no legal effect — Supreme Court however clarified that students to be nominated against Colleges exclusively meant for female students would be nominated from amongst female students who were selected on the basis of merit by Nomination Board — Where any seats were exclusively reserved for male students, nominations against those seats would be likewise made out of male students selected on merit. Rashid Ilyas & 4 others v. Sadia Ahmad Dar & 13 others 2001 SCR 79 (A & C)
  452. S. 44 — Constitutional jurisdiction, exercise of — Alternate remedy by way of appeal when provided in the statute, non- availing of such remedy whether a bar in invoking Constitutional jurisdiction of High Court — Where jurisdiction of Authorities to act under a statute is itself under challenge, aggrieved person need not have recourse to such authorities by filing appeal etc. before invoking Constitutional jurisdiction. Novelty Enterprises Ltd. v. Deputy Collector & 5 others 2001 SCR 191 (B)
  453. S. 44 — Question of fact was not amenable to writ jurisdiction — High Court while exercising constitutional jurisdiction cannot assume the role of a Court of appeal — Ordinarily in writ jurisdiction High Court has to accept as correct the finding given by the Custodian in respect of matters falling in his exclusive jurisdiction. Baqa M. Khan v. Custodian of Evacuee Property & others 2001 SCR 344 (A)
  454. S. 44 — Power of issuing writs and discretions is discretionary with the High Court — Discretion for or against must be exercised like all other judicial discretions — The orders must be well reasoned and based on sound judicial principles. M. Yunus Arvi  v. Sohail Bostan 2004 SCR 352 (C)
  455. S. 44 — Findings by the Courts — Relief in writ is discretionary — If a civil suit is pending between parties, none of the parties competent to file writ — High Court was not competent to give any finding in exercise of writ jurisdiction when the civil suit was pending between the parties. Jan Muhammad v. Muhammad Ismail & 6 others 2001 SCR 437 (A)
  456. S. 44 — Direction can only be issued by High Court. Azad Govt. v. Farhat Shaheen 2007 SCR 62 (B)  PLJ 2000 SC (AJK) 165 rel. Ltd. Col. Nawabzada Muhammad Amir Khan v. The Controller of Esate Duty PLD 1961 SC 119; Federation of pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Miss Asma Jillani v. The Government of the Punjab PLD 1972 SC 139; The Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151: The State v. Zia-ur-Rehman PLD 1973 SC 49 : Malik Ghulam Mustafa Khar v.Pakistan PLD 1988 Lah 49: Azad Government of State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1978 SC(AJ&K) 42: Anwar Jehan v. Additional Member , Board of Revenue 1987 CLC 976; The Punjab Province v.Malik Khizar Hayat Khan Tiwana PLD 1956 F.C. 200 and Hakim Ahmadur  Rahman Malik v. The Province of East Pakistan PLD 1966 Dacca 411 ref.
  457. S. 44 — Controversial points of facts cannot be inquired into in exercise of writ jurisdiction — Strong reasons are required along with the statutory backing to look into the validity or otherwise of the finding recorded by a Tribunal of exclusive jurisdiction. Capt. Rtd. Ali Afsar Khan v. Khalid Mahmood & 4 others 2007 SCR 263 (A)
  458. S. 44 — Writ can be filed by an aggrieved party or person against a person performing functions in connection with the affairs of Azad Jammu and Kashmir or local authority which means the person who while performing his functions passes an order which affects the rights of a citizen, is a necessary party. Dr. Abdul Ghaffar Sulehria v. Azad Govt. & 4 others 2008 SCR 230 (G)
  459. S. 44 read with Order 1 rule 8 C.P.C. — Argument that appellants could not file writ petition in representative capacity and writ petition was filed only by present appellants and not by those who had retired before the date fixed through impugned piece of legislation, the same was not competent — In addition as the judgment of the High Court or for that matter this Court could affect the rights of all those claiming under Benevolent Fund Act, 2002, the appellants were under legal obligation to implead them as party — Without impleading a necessary party the writ petition was not competent — Held: Filing of writ petition where a piece of legislation is impugned or for that matter State functionaries or the Legislature has enacted a law affecting fundamental rights of a group of citizens or a class as a whole any of aggrieved persons can file writ prtition — Superior Courts of Subcontinent rejected the contention that an individual or a group of affected persons cannot challenge law, rules or regulations. Abdul Rasheed and 85 others v. Board of Trustees and 3 others 2008 SCR 417 (A) AIR 1982 SC 1471, 1991 SCMR 1041 & 1991 SCR 1 rel.
  460. S. 44 — A writ petition is not competent against a private person — Nor a relief can be granted by the High Court against any private person. Public Health Engineering Division & another v. Aurangzeb Khan 2008 SCR 590 (C)
  461. Section 44 — Writ — Competent only where no alternate remedy is available — Jurisdiction of High Court is barred where matter brought is in competence of civil Court, special Court or Tribunal — Writ jurisdiction of the High Court is regulated by article 44 of the AJ&K Interim Constitution Act, 1974, which according to its phraseology, at the very outset provides that a writ petition can only be filed if there is no alternate remedy available to an applicant — High Court is not competent to entertain a writ petition where it appears from the record that the controversy brought before the Court is one of civil nature, competently to be decided by the civil Court or within the jurisdiction of a special Court or Tribunal with specific backing of some codal provisions. Muhammad Rasib v. Mst. Maqsood Begum & 17 others 2011 SCR 59 (A)
  462. S. 44 — Writ jurisdiction of High Court — Scope — Disputed question of fact, could not be resolved in writ jurisdiction, but where no adequate remedy was available, the court could decide disputed questions of fact on the basis of available record. Ehtezaz Asghar v. Muhammad Sajawal 2012 SCR 297 (D & E)
  463. AJ&K Interim Constitution Act, 1974, S.44 — S. 13 — Shamlat-e-Deh — “Shamlat-e-Deh” land, is a common land of the villagers and the Government or any other State authority is not empowered to transfer said land — Such-like transfer is violative to the constitutionally guaranteed fundamental rights of property.  Ghulam Rasool v. Said Ahmed 2012 SCR 367 (B)
  464. S. 44 — Admission of writ petition for regular hearing — Held: It is not necessary for the High Court at the time of admission of writ petition for regular hearing that it shall discuss all the relevant law, which has to be discussed at the stage of final adjudication — It is sufficient that the Court after detailed examination reached to the conclusion that law points are involved for resolving the controversy in the writ petition. Prof. Eng. Naib Hussain Vice Chancellor v. Prof. Eng. Dr. Muhammad Riaz Mughal and 10 others 2013 SCR 1 (A)
  465. S. 44 — AJK Home Department (Civil Defence) Service Rules, 1985 — Appointment process — Challenge to — Estoppel — If a person participate in the proceedings and fails to achieve the desired results thereafter, he cannot turn around and challenge the process — Courts have to interpret the law as it is and as it should be — The Courts cannot add or submit anything in the law — Posts of Assistant Director (B-17) and Civil Defence Officer (B-16) were advertised by the Public Service Commission — Qualification for Civil Defence Officer was graduate 2nd Class and having Civil Defence Training School Certificate — When petitioner was not called for interview on ground that he did not fulfil qualification for said post, he filed writ petition — Held: Petitioner was estopped by his conduct from filing writ petition — Petitioner was not having requisite qualification at relevant time, therefore, question of superior qualification as compared to said respondent did not arise — P.L.A. dismissed. APPOINTMENT — (Process)  Tabassum Arif v. Azad Govt. and others 2013 SCR  134 (A)
  466. S. 44 — Question of facts — Exercise of writ jurisdiction of High Court — Rule — There can be no hard and fast rule or inflexible rule of universal application — The statutory provision of Rule 38 of AJ&K High Court Procedure Rules, 1984, empowers the High Court to determine all the questions arisen for determination in the writ petition ordinarily on affidavits and document — The Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and may pass such order as may  appear to it to be just  — In this statutory provision, the High Court is vested with the powers in the light of the circumstances of the case and for administration of justice, to determine the question of facts. M. Azam Tahiri v. Mirpur Municipal Corporation, Mirpur through Administrator, Corporation, Mirpur and 5 others 2013 SCR (SC AJ&K) 1059 (A)
  467. S. 44 — Exercise of Constitutional powers — While exercising Constitutional jurisdiction the High Court cannot exercise those powers which are vested in it was an Appellate Court. Nazir Ahmed and 6 others v. Riaz Ahmed and 5 others 2013 SCR  1069 (A) 
  468. Section 44 — writ — its scope — powers of High Court under section 44(2), the High Court has power to issue a writ on the application of any aggrieved party by directing a person performing functions in connection with the affairs of AJ&K or local authority, to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do or declare that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or local authority has been done or taken without lawful authority and is of no legal effect. Raja M. Arif Khan & another v. Regional HR Chief NBP and 3 others 2014 SCR 564 (A)
  469. S. 44 — writ — its maintainability — two remedies — simultaneously at different fora with the same relief — After bare reading of the above said Constitutional provision, it is spelt out that the Constitutional jurisdiction of the High Court can only be invoked when there is no other remedy available — respondent No.1 has already availed the remedy by filing the suit before the Court of competent jurisdiction, which is pending — Held: after filing the suit with the same relief, which has been claimed before the High Court in the writ petition, the writ petition was not competent, therefore, the same has incompetently been filed before the High Court. Noman Razzaq v. Faryad Hussain Ch. & 13 others 2014 SCR 921 (A) 2001 SCR 437 rel.
  470. S. 44 — writ — its maintainability — on factual controversy — both the parties are claiming their respective plots situated at the one and the same place.  One is claiming that he purchased the plot measuring 1 kanal, whereas, the other is claiming that he purchased the plot measuring 10 marlas situated on the same place. Such like controversy cannot be resolved in the writ petition without recording the evidence, which is not the job of the High Court — Held: it is well settled principle on the subject that the factual controversy cannot be resolved in the writ jurisdiction. Noman Razzaq v. Faryad H. Ch. & 13 others 2014 SCR 921 (B) 2013 SCR 548 & 2007 SCR 263 rel.
  471. Section 44 — writ jurisdiction of High Court — High Court on the application of an aggrieved person may, if it is satisfied that no other adequate remedy is provided by law, declare that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority and is of no legal effect and may also issue a direction to refrain from doing which is not permitted by law to do, or to do that which is required by law to do. Ch. M. Aziz v. Faisal Mumtaz Rathore  2015 SCR 159 (M)
  472. Section 44 — writ jurisdiction — scope of — alternate remedy — elaboration of — It may be observed here that mere availability of alternate remedy does not impose exclusive bar to invoke the writ jurisdiction if the circumstances so warrant that such remedy is not adequate — The word “adequate remedy” connotes an efficacious, convenient, beneficial, effective and speedy remedy — Where the order is without jurisdiction and unlawful, there would be no bar to the filing of writ petition and the High Court in such cases would not hesitate much in entertaining constitutional petition although an alternate remedy is available — Held: The High Court can pass the order on a petition under section 44 filed by an aggrieved person in spite of the fact that the other appropriate remedy is yet available but the same is not efficacious, adequate and speedy in nature. Ch. M. Aziz v. Faisal Mumtaz Rathore & 15 others 2015 SCR 159 (GG) PLD 1972 S.C 279 & PLD 1985 AJK 83 rel.
  473. Section 44 — writ jurisdiction — alternate remedy — interpretation of — while exercising the powers under section 44 the High Court enjoys wide powers to issue any order in the interest of justice and to save the fundamental rights of the citizens granted by the Constitution — the principle that the petitioner must exhaust other remedies available to him before invoking Constitutional jurisdiction under section 44 was not an inflexible rule, rather the same was a norm of propriety — Where the point of law is involved and the same has to be ultimately resolved by the High Court, the Constitutional petition can be filed without availing such remedy — Held: — the remedy must be adequate and efficacious in nature — the remedy must be “both specific and adequate” in the sense that it must be “competent to afford relief upon the very subject-matter and be equally convenient, beneficial, effective and efficacious, speedy or inexpensive. Ch. M. Aziz v. Faisal Mumtaz Rathore & 15 others 2015 SCR 159 (JJ)
  474. Section 44 — writ — The extra ordinary remedy by way of writ, is an equitable remedy — A person who has not come in the Court with clean hands has no right to maintain a writ under section 44. Sardar Muhammad Razzaq v. Chairman Ehtesab Bureau & others 2015 SCR 1156 (M)
  475. Section 44 — AJ&K Board of Revenue Act, 1993 — Writ — alternate & efficacious remedy — Writ against the Board of Revenue — maintainability — The AJ&K Board of Revenue is last authority under the law to decide the lis between the contesting parties or aggrieved party — No alternate remedy against the decision of AJ&K Board of Revenue is provided in the AJ&K Board of Revenue Act, 1993 and the rules made thereunder, therefore, held: the writ under section 44 was competent. Muhammad Ayub & others v. Mushtaq Hussain & others 2015 SCR 1601 (B)
  476. Section 44 — writ — jurisdiction & exercise of powers by the High Court — if the High Court on the application of an aggrieved party, is satisfied that the order passed by the authority offends the clear legal provisions, is against the fundamental rights and no other adequate, efficacious remedy is available to the petitioner, it may direct a person performing functions in connection with the affairs of the AJ&K or local authority or council to refrain from doing what he is not permitted by law to do or declare that any order passed or proceedings taken by a person are against law and set aside the same. Fazal H. (deceased) & 9 others v. Allah Rakhi & 4 others 2016 SCR 55 (A)
  477. Section 44 — writ — ill-gotten gain — relief by way of writ — an equitable relief — writ cannot be issued for retention of ill-gotten gains. M. Sadiq v. AJ&K Govt.& others 2016 SCR 709 (B) 
  478. Section 44 — writ — remedy of — in absence of adequate remedy — an aggrieved person may file a writ petition if there is no other adequate efficacious remedy available to him. Ghulam Murtaza & 8 others v. Board of Revenue & 11 others 2016 SCR 1297 (C)
  479. Section 44 — writ petition — not maintainable — for retention of ill — gotten gain — relief by way of writ is a discretionary and a person who is a trespasser and has illegally occupied the land is not entitled for discretionary relief — illegal possession is an ill gotten gain and writ petition is not maintainable for retention of the ill-gotten gains. Muhammad Hussain v. Chairman Development Authority & 12 others 2016 SCR 1366 (A) 2014 SCR 382 rel.
  480. —Section 44—writ jurisdiction of High Court—writ—contractual liability—maintainability—pre-requisite—the basic condition for exercising the writ jurisdiction is that the person performing functions in connection with the affairs of the AJ&K or the local authority is required to be directed to refrain from doing that which is not permitted by law to do or to do that which is required by law to do; and declaring that any act done or proceeding taken by such person is without lawful authority— The other condition is absence of adequate remedy provided by law- Held: in Constitution there is no specific provision expressly barring the exercise of writ jurisdiction regarding the matters involving contractual obligations and liabilities AJK Government & another v. Muhammad Siddique Khan & 3 others 2017 SCR 640 (A)
  481. —Section 44—Constitution of Islamic Republic of Pakistan—Constitution of India—writ jurisdiction—contractual liability—comparison of— The constitutional provisions of Act, 1974, Constitution of Islamic Republic of Pakistan, 1973 and the Constitution of India regarding exercise of writ jurisdiction by the High Court are almost identical— there is no absolute bar provided in the constitutional provisions relating to prohibition of exercise of writ jurisdiction regarding the matters arising out of the contracts. AJK Government & another v. Muhammad Siddique Khan & 3 others 2017 SCR 640 (C)
  482.                 —Section 44—writ jurisdiction of High Court—matter of contractual liability—maintainability of writ—condition/exception highlighted:- AJK Government & another v. Muhammad Siddique Khan & 3 others 2017 SCR 640 (F)
  483.                 — Section 44— although the extraordinary jurisdiction of High Court cannot be invoked when alternate remedy under law is available–held: if the alternate remedy is not adequate, efficacious, convenient, beneficial, speedy and effective then there is no bar on filing of a writ petition. Messers Friends & others v. Barrister Syed Iftikhar Ali Gillani & others 2017 SCR 534 (F)
  484. —section 44—writ—jurisdiction of High Court—-viries of Rules challenged locus standi—consensus of Courts that the jurisdiction of the High Court can only be invoked by a person whose interest has been adversely affected by the legislation or order under challenge, otherwise he is not entitled to file a writ
  485. petition except the writ of habeas corpus and writ of quo-warranto. Muhammad Irshad vs Sajjad Ahmed & others 2018 SCR 370  (A)
  486. —Article 44—writ—the extra ordinary jurisdiction of the High Court—it is settled principle of law that if no alternate efficacious remedy is available and ingredients of Article 44, are fulfilled then a party can invoke the extra ordinary jurisdiction of the High Court. Muhammad Javed Khan v. Habib Bank Ltd. & others 2019 SCR 954 (A)  PLJ 2000 SC (AJK) 181, SBLR 2009 Baluchistan 98, 2015 SCR 1412 & 2010 SCR 173 rel
  487.  —Article 44—remedy of writ is not available against the private banks—in presence of an alternate remedy in shape of civil suit—the Bank is not a person or local authority performing functions in connection with the affairs of the State. Muhammad Javed Khan v. Habib Bank Ltd. & others 2019 SCR 954 (B)
  488. —Article 44—writ jurisdiction of High Court —matter of contractual liability—maintainability of writ—civil suit is not always a speedy remedy— committee constituted by the Government has decided the matter—Although, civil suit could have been filed in this case but as a committee was constituted by the Govt. which has decided the claim of the appellant, therefore, the learned High Court should have considered the same in writ jurisdiction. If the decision of the said committee was not acceptable even, then the learned High Court should have recorded the findings regarding acceptance or rejection of the same. Similarly, the grounds taken in the writ petition can be resolved even after recording the evidence or summoning the respondents/members of the committee because a civil suit is not always a speedy remedy. Union Electric Corporation (Pvt) Ltd. V. Power Development Organization & others 2019 SCR 261 (A) 2017 SCR 640 ref
  489. —Article 44—writ jurisdiction of the High Court— contractual liability—in presence of alternate remedy–maintainability of— Held: where an alternate remedy is not efficacious and speedy, the High Court cannot refuse the exercise of writ jurisdiction, specially so, when the contract is with the Government or other statutory bodies. Union Electric Corporation (Pvt) Ltd. V.              Power Development Organization & others 2019 SCR 261 (B) 
  490. —Article 44—writ—service matter—maintainability of— High Court issued direction for promotion of civil servant— same is the task of respective selection board/committee— Such like directions are not recognised by law— before ordering for promotion the authority has to form a definite opinion while considering the service record of a person as to whether he is eligible for promotion or not—Held: such finding cannot be recorded by the High Court because the same has an effect of preempting in the jurisdiction of the Selection Board/competent Authority. Muhammad Ishfaq Khan v. Muhammad Rashid Minhas & others 2019 SCR 318 (B) PLD 1991 SC (AJK) 57 & 2018 SCR 86 rel.
  491. —Article 44—Writ—jurisdiction of High Court— service matter—order of de-novo inquiry by the Competent authority–respondent participated in inquiry proceedings—prerogative of the authority—High Court has no jurisdiction to give findings on the inquiry report regarding which the authority has prerogative to take a proper decision. The learned High Court has shifted the proceedings pending before the competent authority before it while pre-empting the jurisdiction of the competent authority, which is illegal. Azad Govt. & others v. Arshad Khan & others 2019 SCR 266 (B)
  492. —Art. 44—writ maintainability— deduction of Conveyance Allowance during vacations from the Govt. Servants serving in educational vacation institutions—Contention that the matter falls within the terms and conditions of service of the Govt. Servants, hence, the jurisdiction of the High Court was barred— Held: that firstly, no basic order has been passed by the competent/departmental authority for deduction of the conveyance Allowance; and secondly, any letter of the Finance Department cannot be treated as order of the departmental authority for the purpose of appeal before the AJ&K Service Tribunal. Finance Department & others v. Mehmoob Ahmed Awan & others 2019 SCR 309 (B)
  493. —Art. 44—writ maintainability— —deduction of Conveyance Allowance of Govt. Servants serving in educational vacation institutions—writ of mandamus—Held: No any final order has been passed regarding deduction of Conveyance Allowance by the departmental authority, therefore, there was no occasion for the Govt. Servants to approach the Service Tribunal. Further held: the writ of mandamus can be issued where a public functionary fails to act in accordance with law and rules. Finance Department & others v. Mehmoob Ahmed Awan & others 2019 SCR 309 (D) 1994 SCR 402 rel.
  494. —Article 44—writ—the extra ordinary jurisdiction of the High Court—it is settled principle of law that if no alternate efficacious remedy is available and ingredients of Article 44, are fulfilled then a party can invoke the extra ordinary jurisdiction of the High Court. Muhammad Javed Khan v. Habib Bank Ltd. & others 2019 SCR 954 (A)  
  495.  —Article 44—remedy of writ is not available against the private banks—in presence of an alternate remedy in shape of civil suit—the Bank is not a person or local authority performing functions in connection with the affairs of the State. Muhammad Javed Khan v. Habib Bank Ltd. & others 2019 SCR 954 (B)
  496. —Article 44—establishment of the office of Mohtasib (Ombudsman) in AJ&K Act, 1992—sections 11,12 & 32—writ–implementation of order/recommendations of Ombudsman–maintainability of—respondents admitted the findings of Ombudsman—participated in  the proceedings—if they were aggrieved, they should have filed representation under section 32-but they failed—findings attained finality—under section 11(2) of Act, 1992, agency was bound to inform the Ombudsman about the action taken on recommendations or reasons for not complying with the same—respondents clearly violated the provisions of section 11(2) of Act, 1992—under section 22 award of cost or compensation by the Ombudsman are recoverable as arrears of  land revenue—-from the public servant, functionary or agency–Held: respondents clearly violated provisions of sub-section 11(2) & 22 of Act, 1992—writ cannot be thrown out— Ch. Abdul Latif V. Azad Govt. & 6 others 2020 SCR 121 (A)
  497. —writ—implementation of recommendations of Ombudsman—writ filed not for determination of compensation/loss etc. but simply for implementation of findings of Ombudsman—under Article 44, if any person performing functions in connection with the affairs of AJ&K or local authority fails to do what is required by law to be done, the extra ordinary jurisdiction of High Court is always there to remove the mischief and redress the grievance— Ch. Abdul Latif V. Azad Govt. & 6 others 2020 SCR 121 (B & C)
  498.   —Art. 44—jurisdiction of  the High Court— the High Court exercised suo motu powers— there was no occasion for the High Court to itself register the petitions—Constitution has not conferred any such power—had the same been conferred, it would have been mentioned in the clear terms. Asad Muneer Khan V. The State & 16 others 2020 SCR 413 (H) 2014 SCMR 122 rel
  499. —Article. 44—writ—Jurisdiction of the High Court of AJ&K to issue writ against the Federal Secretary Kashmir & Gilgit-Baltistan Affairs—Held: that the order passed by the Federation or the authorities even located beyond the territory of AJ&K who perform functions in connection with the affairs of the Azad Govt. of the State of J&K or Council are amenable to the jurisdiction of the High Court of AJ&K. Ministry of Kashmir Affairs & Gilgit  Baltistan & another V. M/s ZK Associates (Pvt.) Limited & 4 others 2020 SCR 659 (A)  PPLD 1993 AJK 1 & 1995 SCR 43 rel
  500. —Article. 44—writ jurisdiction—locus standi of non-State Subject to file writ—Argument: the respondent being not a State subject,  had no right to file the writ petition before the High Court of AJ&K—The  Court observed that for construction of the Legislative Assembly Complex, the amount has been donated by the Government of Pakistan through Ministry of Kashmir Affairs and Gilgit Baltistan but the whole tendering process including evaluation of the bids submitted by the participants has been conducted at Muzaffarabad, therefore, it cannot be said that the cause of action has not arisen within the territorial jurisdiction of AJ&K. Held: if any violation is made in the tendering process, the same can be questioned before the AJ&K High Court notwithstanding the fact that the matter can be taken to any other High Court in Pakistan. Argument repelled. Ministry of Kashmir Affairs & Gilgit  Baltistan & another V. M/s ZK Associates (Pvt.) Limited & 4 others 2020 SCR 659 (A) PLD 2008 SC 735 & 1995 SCR 43 rel
  501. — Art. 44—jurisdiction of High Court— High Court granted relief without existence of any lis—the framers of the Constitution never intended to confer suo moto jurisdiction on the High Court–the High Court is not empowered to grant relief beyond the scope of pleadings—the relief granted by High court does not commensurate or is covered by any provision of law. Khawaja Aamir Ahmed Versus Azad Govt. & 6 others 2021 SCR 58 (N&O)
  502. –Art. 44—Code of Civil Procedure—-section 91, Order 1 rule 8—writ in representative capacity—Provisions of CPC are applicable to writ proceedings— for filing of the writ petition in the representative capacity the permission of the Advocate-General is necessary—without obtaining permission of Advocate-General or the Court, writ in the representative capacity is not competent.    Farooq Ahmed Butt Versus Azad Govt. & 8 others 2021 SCR 284 (A) 2007 SCMR 741 & 1157 ref.
  503. —Art. 44—jurisdiction of High Court—scope of—quashment of FIR—Art. 44 confers wide vast powers on the High Court, but this vastness demands exercise of these powers sparingly and with great caution—discretionary remedies available u/Art.44 are meant for doing justice and eradicating injustice— High Court has inherent powers to prevent the abuse of process of Court and law—according to settled by legal precedents, the Courts would not interfere with the investigation, which would mean that from the lodging of  F.I.R. till submission of report u/s 173, Cr. P.C., this domain is exclusively reserved for investigating agency and not open to the High Court to interfere except in exceptional circumstances. Sharoom Khan&another v. Justice of Peace & others 2022 SCR 267 (B)
  504. —Art. 44—Code of Criminal Procedure, 1898 section 561-A Constitutional jurisdiction and inherent powers of High Court–exercise of—FIR—quashment of—eventualities—exercise of powers by the High Court highlighted. Sharoom Khan&another v. Justice of Peace & others 2022 SCR 267 (D)
  505.  —Art. 44— Code of Criminal Procedure, 1898 section 561-A–exercise of powers by High Court—FIR— the High Court while exercising constitutional jurisdiction as well as inherent powers u/s 561-A, Cr.P.C. cannot assume the role of investigating agency or trial Court— criminal cases are decided on the basis of material so collected by the prosecution— High Court cannot deliberate upon the factual controversies involved in these cases while exercising constitutional jurisdiction. Sharoom Khan&another v. Justice of Peace & others 2022 SCR 267 (E) 2001 SCR 447, ref
  506. —Article 44, AJK Interim Constitution, 1974—Writ jurisdiction— the High Court has been empowered under Article 44 of AJK Interim Constitution, 1974, to issue appropriate writ to person performing functions in connection with the affairs of AJK, to act in the way he is required by law or abstain from doing any act which he is not required to do under the law. Amjad Hussain v. Khuram Nawaz Rathore & others  2022 SCR 1153 (I) Basharat Mehmood vs. Raja M. Waheed & others 2017 SCR 257 rel.
  507. — Article 44 — AJ&K Public Procurement Rules, 2017 — rule 48 — redressal of grievances of bidders — alternate remedy — writ — maintainability of — petitioners directly approached the High Court for redressal of his grievance, whereas an alternate efficacious remedy in shape of lodging complaint before Grievance Redressal Committee (GRC) was available — petitioner has not taken any action to formally lodge a written complaint addressing his grievance within 7 days following the announcement of technical evaluation report, and within 5 days after issuance of final evaluation report — petitioner directly sought recourse invoking constitutional jurisdiction of High Court — this course of action is not align with appropriate procedural path u/rule 48 of PPRA rules — Held: when an alternate efficacious remedy is available to a party, no direct writ lies to the High Court. Neelum View Hotel versus Vice Chancellor AJK University & 02 others 2023 SCR 1188 (A, D & E) 2019 SCR 71  & 2011 SCR 59 ref.
  508. — Article 44 — writs— Code of Civil Procedure, 1908 — the provisions of the Code are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. M/s Sardar Ilyas Alam versus Secretary Public Works Dept. & 12 others 2023 SCR 1137 (A)
  509. — Article 44 — writs— Code of Civil Procedure, 1908 — Order XXIII, rule 1 — withdrawal of writ petitions — adoption of principle of Order XXIII, rule 1, CPC, in withdrawal of writ petitions — it is common knowledge that very often after a writ petition is heard for some time the petitioner or his counsel finds that Court is not likely to pass an order admitting the petition, request is made to permit the petitioner to withdraw the writ without seeking permission to institute a fresh writ — a Court which is unwilling to admit the writ would not ordinarily grant liberty to file fresh writ, while it may agree to permit the withdrawal of petition — it is plain, once a writ is withdrawn by the petitioner himself, he is precluded from filing appeal against the order because he cannot be considered as a party aggrieved by the order passed by the High Court — in the case in hand, no permission for filing fresh writ was granted by the High Court, hence, writ petition was barred u/O XXIII, Rule 1, CPC M/s Sardar Ilyas Alam versus Secretary Public Works Dept. & 12 others 2023 SCR 1137 (D & E) AIR 1987 SC 88
  510. — Article 44 — constitutional jurisdiction — alternate adequate remedy — effect of — litigant responsibilities — abuse of process of Court — writ — granting litigants unrestricted access to bring forth a wide array of disputes to the High Court, without first requiring them to exhaust the remedies explicitly outlined in the legal framework, would undoubtedly lead to an excessive burden on the Court’s resources and capabilities — such an approach not only undermines the efficient functioning of the Court but also goes against the very purpose for which there alternate remedies were established — this practice if consistently adopted by the litigants, runs the risk of being perceived as an exploitation or misuse of the constitutional jurisdiction of the High Court — Constitutional Jurisdiction is fundamentally designed to be invoked in exceptional circumstances, where alternative means of redressal fail to adequately address the concerned by the aggrieved parties. Neelum View Hotel versus Vice Chancellor AJK University & 02 others 2023 SCR 1188 (F) PLD 1996 SC 246 ref.
  511. Article 44 — AJ&K Public Service Commission (Procedure) Rules, 1994 — Rule 13(2) — Writ — laches — withholding of post — u/r 13(2) of Rules, 1994, the merit list remains valid for a period of 180 days — hand out of selected/successful candidates issued by PSC on 16.10.2019 — the writ was filed on 16.04.2020 after a period of 182 days, when the merit list was non-existent and no more valid — held: no writ could have been issued. Dept. of Higher Education & another vs Nadeem Hussain & another 2024 SCR 292(A) 2019 SCR 617 rel.
  512. — Art. 44 — Forest Regulation of 1930 — section 28 — writ — maintainability of — alternate remedy — DFO u/s 28 ordered for confiscation of forest produce & Truck — the respondents were at liberty to file a revision petition to Govt. — writ petition is not maintainable, when an alternate and efficacious remedy is available — Forest Department vs Mst. Saleem Akhtar & others 2024 SCR 17 (B&C) 2011 SCR 50 ref.  — Art. 44, — empowers the High Court of AJ&K to issue appropriate writ or direction to person performing functions in connection with affairs of AJ&K to act in a way as he is required under law to do such act or abstain from doing any act which he is not authorized under law to do any such act and writ may be issued only on violation of any, statutory provision, rules or celebrated principle of law not otherwise. Further, writ cannot be issued to restore any act which is otherwise against law or rules and later on, rectified by authority and High Court set-aside such rectifying order while issuing writ. Kanwal Shahzadi vs Muhammad Naeem & others  2024 SCR348 (N) 2022 SCR 1153 rel.
  513. —Art. 44 (2) (a)—writ of—mandamus/prohibition against president Bar association—A direction of prohibition only can be issued to the person performing functions in connection with the affairs of the Government or the local authority—The president of the local Bar is not a person performing functions in connection with the affairs of the State. Held: the writ petition filed against him was not competent. Ch. Muhammad Riaz v. Azad Govt. & others 2019 SCR 663 (A, B & C) PLD 2009 Lah. 677, 2019 SCMR 221, PLJ 2000 SC (AJK) 181, PLD 1975 SC 244 & PLJ 2002 SC (AJK) 101, rel
  514. —Article 44(ii)(c)—The pre-requisites for invoking the jurisdiction of the High Court. One of those pre-requisites is that writ should be filed on behalf of an aggrieved person. Abdul Baseer Khan & another v. Abdul Razzaq Khan & others 2019 SCR 965 (A) PLD 1987 AJK 88 rel
  515. —Articles 44 & 47—jurisdiction of High Court & Service Tribunal—Service Rules—implementation of—writ–competency of—Service Rules, according to their spirit, fall within the definition of departmental order—appellants deeming rules favourable approached the High Court for implementation—writ petition is competent and the same does not fall within the purview of terms & conditions of service relating to which any right of appeal is provided before Service Tribunal. Muhammad Hanif Mughal & others v. Secretary Forest & others 2019 SCR 777 (B)
  516. —Arts. 44 & 47—AJ&K Civil Servants (Appointment & Conditions of Service) Rules, 1977—Rule 9—writ—direction for promotion—maintainability of—rule provides for promotion on the recommendations of Committee or Board after determining  eligibility and fitness—determination of eligibility relates to the terms and conditions—High Court cannot direct for  promotion in exercise of writ jurisdiction— prior to promotion, the authority has to form a definite opinion while considering the service record as to whether someone is eligible for promotion or not— such findings cannot be recorded by the High Court because the same have an effect of pre-empting the jurisdiction of the Selection Board/Committee. Azad Govt. & another Versus Farrukh Rafique & 3 others 2021 SCR 461 (A) 2019 SCR 318 rel.
  517. —Ss.44 & 47—direction issued by the High Court is bar u/s 47 —High Court substituted the wisdom of the selection board by  declaring  respondent  No.1,  herein,  entitled  for  promotion, therefore—Moreover, no such direction can be given in absence of the  recommendees  of  the  selection  board  who  were  necessary party. Javed Ejaz & others vs Iftikhar Ahmed Khilji & others 2018 SCR 331 (D)
  518. —Articles 44 and 47—jurisdiction of High Court and the Service Tribunal—writ—matter of posting and appointment by transfer—void-ab initio order—writ jurisdiction—Held: that the posting and transfer/appointment cannot be questioned in writ jurisdiction even if an order is void ab-initio. Muhammad Ishfaq Khan v. Muhammad Rashid Minhas & others 2019 SCR 318 (A)
  519. —Arts. 44 & 47—writ—maintainability of— employees of autonomous body—the Service Tribunal being a Tribunal of exclusive jurisdiction, is the sole forum for resolving the disputes arising out of the terms conditions of service of the civil servants including appointment, promotion, release of salary etc—the appellant is an employee of an autonomous body and the provisions of Civil Servants Act are not applicable to the employees of  autonomous bodies—appellant rightly resorted to the High Court. Shahbaz Shabir v. Chairman KDA Kotli & others 2022 SCR 582 (A) —Sections 44 & 49—AJ&K Civil Servants Act, 1976— Section 23, AJ&K Public Works Department Service Rules 1992– -writ —amendment of Rules—proposition of—the rules can be declared illegal if they authorised to regulate the terms & conditions of person in the service of AJ&K—for carrying out the purpose of Act, 1974, civil servants Act, 1976 been enacted u/s 23, the Govt. is empowered to make rules for carrying out the purpose of the Act, therefore, held this power of Govt. cannot be curtailed by any other enactment. Muhammad Irshad vs Sajjad Ahmed & others 2018 SCR 370 (C) PLD 1988 SC 155 & PLD 1987 SC 172 Ref
  520. Section 44 (I) & (ii) — writ of mandamus —High Court may direct an authority performing functions in connection with the affairs of AJ&K and local authority to refrain from doing that which he is not permitted by law to do, or to do which he is required by law — declaring an act done or proceeding taken by a person or authority without lawful — Held: the High Court may pass such orders on the application of any aggrieved party and not otherwise. Muhammad Tahir v. Syed Muhammad Nazar Iqbal & 8 others 2016 SCR 586 (A)
  521. S. 44 (2) — Writ issuance of — Essential features:-1.         The use of word “may” shows that it is a discretionary relief and even if the petitioner Succeeds in making out a legal case the High Court may refuse to issue a writ if it is in the interest of justice to do so; 2.         Writ can only issue on the application of an aggrieved party; 3.         Writ can only issue if there is no other adequate remedy provided by law; 4.         It can only issue against a person who is performing functions in connection with the affairs of AJK/State or a local authority; 5.         A direction under sub-clause (I) can only be issued to enforce a law;6.         Declaration in sub-clause (ii) can be issued if the person mentioned above has acted without lawful authority in which case his act would be declared as of no legal effect. M. Rashid Ch. v. Chairman AKLASC & others 1995 SCR 73 (G)
  522. S. 44 (5) Order passed by a person can be challenged through a writ — “word person” defined — Person whose order is challenged is a necessary party and without his impleadment — Writ not maintainable. Muhammad Shafi v. Feroze Khan & others 1994 SCR 19 (B)
  523. S.44(5) specifically excludes the High Court and Supreme Court from word ‘person’ which of course includes party and it by analogy applies to all the proceedings and all laws before all Courts unless persons of a Judge as distinguished from his judicial capacity is in dispute — If this practice is allowed the Judges of superior Courts may start passing orders against each others which will create anarchy in the State — Language used against Judges of High Court smacks of hatred and ridiculousness which is apprehendable  under law — The Registrar directed not to entertain any such petition or appeal in which Judges are made party by name in appeals against their decision or when unbecoming scandalizing or contemptuous language is used against them. ABDUL RAHEEM ZUBAIR BUTT v. AJ&K HIGH COURT & 7 OTHERS 2002 SCR 455 (J)
  524. Ss. 44(5), 43(2-A) & 42-E — High Court of Azad Jammu and Kashmir — Appointment of High Court Judge by notification — Writ of quo warranto against such appointment — Maintainability — Writ petition in the present case, had not been filed against the High Court or a judgment of the High Court, rather it had been filed against a notification issued by the President/Executive, being against the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 — Executive order can be challenged in the writ petition and the petition for writ of quo warranto in the present case was competently filed and section 42-E of the Azad Jammu and Kashmir Interim Constitution Act, 1974 was no bar in filing the writ petition —  Appeals were disposed of accordingly. M. Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad 2012 SCR 213 (L)
  525. Sections 44, 47 — writ — maintainability — The writ petition in the matter relating to the terms and conditions of service of a civil servant is not maintainable. Azad Govt. & others v. Hadayat Ullah Khan 2016 SCR 688 (B) PLD 1980 SC (AJ&K) 5 & PLD 1991 SC (AJ&K) 57 rel.
  526. Ss. 44 & 49 — Reveal that for purpose of filing a writ petition a strict legal right is not required — It is only the interest of a person invoking writ jurisdiction of High Court which has to be seen. Vice–Chancellor AJ&K University & 2 others v. M. Ishtiaq & 83 others 2007 SCR 208 (E)
  527. S. 44, 56(A) — See Land Acquisition Act, 1894, Ss.4, 5, 6, 7.Sultan Habib and 10 others v. Mirpur Development Authority through its Chairman, and 9 others 2013 SCR 101 (B)
  528. S. 45 — See AJK Contempt of Court Act, 1993, S. 3. Robkar–e–Adalat v. Barrister Sultan Mehmood Chaudhry and others  2013 SCR (SC AJ&K) 1084 (E)
  529. —Article 45—High Court and Supreme Court vested with vast powers in relation to contempt of Court—Contempt of Court powers cannot be curtailed or controlled through subordinate legislation—Under Article 45 of the Azad Jammu and Kashmir Interim Constitution, 1974, the Azad Jammu and Kashmir Supreme Court and High Court are vested with the vast powers in relation to the contempt of Court and exercise of these powers has been further regulated by law but it does not mean that through any subordinate legislation the powers of the Supreme Court or the High Court vested under Article 45 of Azad Jammu and Kashmir Interim Constitution, 1974 can be curtailed or controlled. Haji Javed Akram v. Ch. Muhammad Saeed 2019 SCR 816 (L)  PLD 2012 SC 923 Rel
  530. — Article 45, AJK Interim Constitution, 1974— Contempt of Court—Sub-Article (3) of Article 45 of the Constitution postulates that powers of a Court under Article 45 may be regulated by law and rules made by Court. Kh. M.Maqbool War v. Sardar M. Javed Ayoub 2022 SCR 1299 (B, D & E)
  531. — Article 45 — contempt of Courts Act, 1993 — section 3 — locus standi for initiation of contempt proceedings — the Court can take cognizance suo-moto — the contempt application filed by the petitioners has the status of just an information and thereafter the matter is between the Court and Contemnor — it cannot be said that a contempt application can only be filed by an aggrieved person — the observation made by the High Court that a contempt application can only be filed by an aggrieved person is not in consonance with law — Umama Gulraiz & others vs Ch. Anwar ul Haq & others 2024 SCR 41(A&B) 2019 SCR 816 & 2000 SCMR 1969 ref.
  532. S. 46 — High Court supervisory jurisdiction of — High Court should issue directions to the Courts and Magistrates as to what course of action should be adapted for sending the under trial prisoners to judicial custody when the Presiding Officer is not available. Ghulam Nabi Saleem Chishti  v. State and another. Ghulam Nabi Saleem Chishti v.  State and another 1997 SCR 45 (D)
  533. S. 46 — Despite the fact that appeal was competent before the Distt. Judge, the High Court was not deprived of exercising its revisional jurisdiction — This constitutional provision gives wide powers to High Court to exercise the power of superintendence and control over all the Courts subordinate to it whether appeal lies to it or not — Despite the deletion of powers u/s.35 of Courts and Laws Code, 1949, the High Court cannot refuse to exercise its powers which are vested to it u/s 46 of AJK Interim Constitution Act, 1974 which is the supreme law of the land. Muhammad Resham Khan and 2 others v. Muhammad Amir Khan 2000 SCR 589 (B)
  534. S. 46 — The High Court is vested with the authority to superintend and control all other Courts which are subordinate to it — The Judges while sitting in the meeting to dilate upon the administrative matters brought before them under Chap. XVIII of High Court Procedure Rules, 1984 are competent to take any administrative action in exercise of their authority under rules and under section 46 of Interim Constitution Act. Abdul Raheem Zubair Butt v. AJ&K High Court & 7 Others 2002 SCR 455 (F)
  535. All laws in force have to be enacted, read and interpreted in light of section 46 of Constitution and not beyond that. Abdul Rehman Zubair Butt v. AJ&K High Court & 7 others 2002 SCR 455(G)
  536. S. 46 — Power of superintendence and control of High Court — The object of both the provisions is to confer jurisdiction upon the High Court with the purpose that no injustice should be done to any person — Any error in the decision of trial Court as to its jurisdiction is open to revision — High Court can exercise even suo motu revisional powers where it is found that the order passed by the subordinate Court is contrary to statutory provisions or the same is without jurisdiction. M. Latif  Khan v. M. Hanif 2007 SCR 125 (B)   PLD 1999 Karachi 417 and 1996 MLD 818 relied.
  537. S. 46 — Apart from section 115 C.P.C. High Court has powers of superintendence and control over the Courts subordinate to it under section 46 of AJ&K  Interim Constitution Act — The powers of superintendence and control include the powers of correction of jurisdictional errors or material irregularities committed by subordinate Courts during judicial proceedings — The rule of procedure and technicalities cannot obstruct the exercise of these powers — The rules are meant to promote the ends of justice and to defeat it. Tariq Mehmood v. Contractor Ahmed Din and 4 others 2009 SCR 294 (C)
  538. Section 46 — establishment of the courts — does not debar — but not allow to establish parallel judicial system — the said section does not debar to establish the other Courts, however, the same does not allow to establish the parallel judicial system. Azad Govt. & 4 others v. Sardar Javed Naz & 2 others 2016 SCR 400 (J)
  539. Section 46 — appointment of the Judges of the Shariat Court — non-compliance of Supreme Court’s direction — establishment of the Shariat Court — non-assigning of the reasons for establishment of the Shariat Court — Held: while promulgating Ordinance No. XVIII of 2014, direction of Supreme Court not complied with in letter and spirit. Azad Govt. & 4 others v. Sardar Javed Naz & 2 others 2016 SCR 400 (K)
  540. S. 46 read with AJK Shariat Court Act, 1993 — Contention that u/s. 46 of Constitution Act, 1974, no Court, which is under supervision and control of High Court can be established — Further contended that under section 47 of Constitutional Act, Administrative Courts and Tribunals can be constituted which are not subordinate to High Court, appeal against an order of such Administrative Court or Tribunal is competent to Supreme Court but no such eventuality has been envisaged in Section 46 which implies that expression ‘such other Courts as established by law’ in sub-section (2) of section 46, would mean Courts under supervision and control of High Court and not independent of it, whether administrative or otherwise — Held: Supreme Court is unable to subscribe to contentions of respondents that Shariat Court could be established only under supervision and control of High Court, otherwise its establishment would militate against concept of independence of judiciary from Executive, because, Constitution Act does not contain any provision in that regard. Azad Govt. v. Genuine Rights Commission AJK and 7 others  1999 SCR 1 (G)
  541. Section 46 — Civil Service (Judicial Branch) Rules — superintendence and control of High Court over subordinate Courts — independence of judiciary — concept of — under Section 46, the High Court has control and superintendence over all the Courts subordinate to it—The matter of superintendence and control over subordinate judiciary is directly related to the independence of judiciary — Previously the appointments and transfers were made by the Government — Under item No.2 of Annexure “A” of Civil Service (Judicial Branch) Rules, 1984, the appointing authority was Government — under Civil Service (Judicial Branch) Rules, 1993, the appointing authority of the judicial officers was also the Government — AJ&K Judicial Service Rules, 1999, were framed while recognizing the independence of judiciary, the powers of appointment and transfer were vested in the High Court instead of the Government. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (A) PLD 1989 Karachi 404, ref.
  542. Section 46 — AJ&K Judicial Service Rules, 1999 — AJ&K Delegation Financial Powers Rules, 1994, notification No. FD/R/(184)/06, dated 2.3.2006 — superintendence & control over subordinate judiciary —  Under Rules, the appointing authority of District & Sessions Judges, Additional District & Sessions Judges, Senior Civil Judges/Family Judges and the Civil Judges is the High Court — through notification dated 2.3.2006 the Delegation of Financial Powers Rules, 1994 were amended and financial autonomy was conferred and Chief Justice has been empowered to re-appropriate funds, sanction expenditure, create new posts and abolish old posts, etc. Muhammad Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (B)
  543. Section 46 — Phraseology of sub-sections (2) & (3) speaks that such other Courts can be established by law in addition to Supreme Court of AJK and the High Court — establishment of such other Courts does not mean for conferring the jurisdiction already vested in the Supreme Court or the High Court — Word “ in addition” conveys the intention of legislature that for establishment of such Courts there must be some additional object which cannot be achieved through the already established Court — the establishment of such other Court without the additional object or jurisdiction will amount to destruct the whole system of administration of justice which cannot be the true spirit of the constitution. Bashir Ahmed Mughal v. Azad Govt. 2014 SCR 1258 (DD)
  544. —Art. 46 (1) —AJ&K judicial (Policy Making) Committee Act, 2017—trichotomy of powers—sections 3 and 4—writ—Art. 46 (1) casts a duty upon the High Court to keep the subordinate Courts within the limits of their authority— the powers of posting, transfer and appointments are vested in the High Court— under section 4, the basic function of the Committee is to improve the capacity and performance—the expeditious dispensation of justice is limited not only to the Courts subordinate to the High Court but it is also the requirement in the High Court and Supreme Court— the powers of the High Court to superintend and control over the Courts subordinate to it are alive—the impugned legislation by no way curtails the powers of the High Court or violates any of the provisions of the Constitution. Muhammad Yasir Safeer Mughal  Versus  Fayyaz Ahmed Janjua & 6 others 2021 SCR 6 (F)
  545. S. 46-A — A reference u/s 46-A does not fulfil and is not covered by the requirements of a petition or an application — Firstly it is not an application for adjudication, secondly there are no parties in a reference; thirdly it is not from a citizen or subject to a Court or person in authority — Fourthly there is no decision or adjudication in a reference — A reference culminates in advice or opinion of the Court on any question of law of public importance — An opinion tendered in a reference by Supreme Court is neither an adjudication nor it is binding on the Chairman of the Council or the President of AJ&K — A reference, therefore, is not covered by the word ‘petition’ or ‘application’. Al-Khair Trust of Pakistan and another  v. Prof.G.J. Preshan Khattak and 4 others 2002 SCR 476 (N)
  546. Section 46-A — Rules of Business, 1985 — Law Department Manual, 1984 — reference by the President — objection that reference is filed without notifying the same — If the Chairman, AJ&K Council or the President desires to obtain the opinion of the Supreme Court on any question of law, which he considers to be of public importance, he may refer the question to the Supreme Court for consideration and opinion — Held: The question referred to the Supreme Court by the President is neither an appeal nor a petition for leave to appeal — Under the provisions of the Rules of Business read with the Law Department Manual, issuance of notification for filing the appeal/petition for leave to appeal is obligatory — Without a formal notification and appointment of the counsel, the appeal/ petition for leave to appeal, as the case may be, is not competent. Further held: The provisions of Law Department Manual are not attracted while filing reference under Section 46-A. Presidential reference v. —  2015 SCR 1249 (A)
  547. Ss. 46-A, 27(4) & 18 of the Act — Supreme Court Rules — Rule 2 — No confidence motion against Prime Minister — Meeting of Assembly — Withdrawal of resolution — President’s Reference on following points — (i) whether after withdrawal of resolution, another such like resolution can be moved within a period of six months — (ii) whether mover of resolution can withdraw the same without permission of Assembly — (iii) whether after fixing and announcing date for voting of no confidence resolution, Assembly was under Constitutional imperative to hold its meeting so announced — Stage of passing or not passing a resolution arises when a resolution is brought in orders of Day or agenda of Day — Even on that day mover of resolution will be asked to put up resolution before House and he can with draw it without permission of House or Speaker — There exists no legal impediment for a Member to move such a resolution afresh at any time — Resolution was not included in agenda or orders of Day, so it could have been withdrawn as no date for moving no-confidence resolution was ever fixed or announced. President’s Reference No.1 of 1997 1998 SCR 255 (A, B)
  548. S. 46-A and 42-B — Words ‘decide’ and ‘opinion’ both terms are interchangeable and have identical meanings — Therefore, it is not correct to suggest that ‘opinion’ of Supreme Court given under Section 46-A of Constitution Act is not binding but ‘decision’ under section 42-B is binding because former is not inter-party while later is — Supreme court is of opinion that distinction drawn between meanings of words ‘decide’ and ‘opinion’ while interpreting Section 42-B and 46-A of Constitution Act is artificial one and is not acceptable in view of dictionary meanings — In fact in every decision there is an ‘opinion’ and in every ‘opinion’ on a law point there is a ‘decision’ — There, Supreme Court is in agreement with view taken by Supreme Court of India and hold that opinion given on a point  of law under section 46-A of Constitution Act is binding upon all Courts in State of Azad Jammu and Kashmir until and unless same is changed by Supreme Courts itself in come subsequent proceedings — It may be observed here that no authority  from Pakistan or Azad Kashmir jurisdictions, relevant to matter in hand, was cited at Bar — Thus, High Court was not correct in ignoring dictum of Supreme Court given in Reference No. 1 of 1998 — However, as Supreme Court is dealt with points involved in appeal and a decided same on merits, failure of High Court to follow view taken by Supreme Court in said reference is not of any legal consequences, specially so when there was no previous dictum of Supreme Court on aforesaid point. Azad Govt. and 3 others v. Genuine Rights Commission AJK and 7 others  1999 SCR 1 (N)
  549. S. 47- Service Tribunal has been given wide power to redress the grievances of civil servants — power of Service Tribunal different from a Court of law-Courts of law cannot modify an order competently passed by a functionary even it was found to be wrong. Muhammad Azad Khan  v. The Secretary AJK Council 1993 SCR 387 (F)
  550. S. 47 — Service matter — High Court had no jurisdiction — S. 47 ousts the jurisdiction of all Courts in respect of matters in which the jurisdiction of Service Tribunal extends. Muhammad Riaz & others v. Azad Government & others 1994 SCR 82 (B)
  551. S. 47 — This section clearly and totally prohibits the High Court from entertaining any proceeding in respect of a matter to which the jurisdiction of the Service Tribunal extends. Azad Government & others v. Raiz Ahmad 1995 SCR 159 (A)
  552. S. 47 — If the matter falls within in the ambit of “terms and conditions” of a civil servant the grievance regarding the same cannot be redressed by invoking the writ jurisdiction of the High Court in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act. Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter 1995 SCR 292 (A)
  553. S. 47— Dispute relating terms & conditions of service — Cannot be brought to the High Court in the presence of Service Tribunal — No Court can grant an injunction, make any order or entertain any proceeding in any matter to which jurisdiction of Administrative Court or Tribunal extend. Rakhshanda Kokab and 4 others v. Kaneez Akhtar and 11 others 1999 SCR 282 (A)
  554. S. 47 — The disputes relating to the terms and conditions of the civil servants have been given exclusively within the jurisdiction of Service Tribunal.  ABDUL RASHID v. AKMIDC and 3 others 2002 SCR 530 (A)
  555. S. 47 — Civil service — Retirement — Dispute regarding date of birth — Petitioner who was retired vide notification after attaining age of superannuation, had challenged said notification of retirement alleging that his date of birth had been wrongly recorded in his Service Book — Date of birth as recorded, on the basis of which the petitioner was retired from service was 15-1-1952, while the petitioner had claimed his date of birth as 15-1-1956 — Petitioner had served more than 40 years in the Police Department, but had not timely applied for correction of his date of birth as recorded — Petitioner had himself applied for issuance of duplicate copy of his Matriculation Certificate and upon his application, the Board of Education, verified his date of birth as 15-1-1952 — Petitioner raised dispute regarding the correction of his date of birth before competent Authority, just less than a one month’s time before his retirement — As per latest verification issued by the Board of Education, petitioner’s date of birth was 15-1-1952 and that verification had been issued after holding an inquiry — Unless any contrary conclusion drawn by the Board of Education, was brought on record, said verification could not be ignored as the most relevant and competent Authority/Institution was the Board — If the date of birth 15-1-1956, as contended by the petitioner, was considered correct, then his recruitment/induction in the department would be in 15 years age, while according to statutory provision, no person could be inducted into service, who was found less than 18 years of age — No illegality was in the impugned judgment of Service Tribunal — No substantial question of law of public importance was involved in the petition for leave to appeal, which was dismissed, in circumstances. Sr. Khurshid Hussain, Deputy Inspector v. Azad Govt. of the State of J&K 2012 SCR 23
  556. Section 47 — tribunal — contention that Election Tribunal falls in the definition of “tribunals” provided in section 47 of the constitution — Held: contention misconceived. Section 47 deals with the matters relating to terms and conditions of persons in the service of AJ&K, matters relating to the claims arising from tortuous acts of the council or the Govt., or any person in the service of AJ&K or matters relating to acquisition, administration and disposal of any property which is deemed to be enemy property. Sr. M. Hussain v. Dr. Najeeb Naqi&12 others 2014 SCR 140 (C)
  557. Section 47 —  Jurisdiction of Service Tribunal — High Court will not entertain a proceeding in respect of a matter within the exclusive jurisdiction of the Service Tribunal — However, following broad principles are laid down for guidance:- If an adverse order has been passed by a departmental authority, it can only be challenged by filing appeal before the Service Tribunal to the total exclusion of the jurisdiction of the High Court.If a favourable order has been passed by a departmental authority but it is not being implemented without just cause and the matter suffers from procrastination a writ, subject to just exceptions, may issue to enforce its implementation provided always that the order is valid and legally enforceable.Principle laid down in No.2 above would not apply if the previous order is being reconsidered or is being recalled in which case reasonable time should be allowed for the reconsideration and final disposal of the matter. In such case High Court cannot issue a direction to the relevant departmental authorities not to with draw or amend the order sought to be implemented through the writ petition.If a final order has been passed the concerned  civil servant should wait till passing of such order and then challenge it before the Service Tribunal instead of approaching the High Court for a declaration or injunction regarding a matter which falls within the ambit of terms and conditions of his service e.g. seniority, promotion, posting etc.If an application, appeal or review is pending for disposal with the departmental authorities, the High Court is competent to issue a direction for its disposal within a reasonable time by fixing a time limit. However, this power will be exercisable only if the High Court is satisfied that the departmental authorities are procrastinating or contumaciously refuse to pass a final order. Ejaz Ahmad Awan & 5 others v. Manzoor Ali Shah & another 1999 SCR 204 (A)
  558. S. 47 — service matters — jurisdiction of Service Tribunal — writ — its maintainability — u/s 47 writ petition is not maintainable in the matters falling in the definition of terms and conditions of service.  Held: the Service Tribunal has exclusive jurisdiction in the matters of service except the matter where the jurisdiction of the Service Tribunal is barred by express provision of any Act of Legislature. Syed Rashed Hussain Shah v. Azad Govt. & 6 others 2014 SCR 883 (B)
  559. S. 47 — Jurisdiction of Service Tribunal — ouster of jurisdiction of the Civil Courts — In service matters — the Constitution has ousted the jurisdiction of all the civil Courts including the High Court and conferred exclusive jurisdiction on the Service Tribunal in the matters relating to the terms and conditions of the civil servants. Held: an authority clearly declared to be incompetent under constitutional provisions cannot adjudicate upon the service matters for which the competent forum is available. Syed Rashed Hussain Shah v. Azad Govt. & 6 others 2014 SCR 883 (E) 1998 SCMR 2280 & 1994 SCR 267 rel.
  560. S. 47 — Removal from Service (Special Powers) Act, 2001 — AJK Police Efficiency and Discipline Rules, 1992 — Appellant being Constable Reserve Police was deputed in China Society — Absence from duty — Charge — Termination order was passed — Representation was returned to appellant on ground that same was not bearing signature of appellant — Appellant filed a service appeal which was dismissed by Service Tribunal — It was primarily contended that Superintendent of the District Police was not competent to pass said removal order as he had no jurisdiction to conduct any inquiry and proceed against any employee of Reserve Police — Standing order — Service Tribunal failed to dilate upon all the issues raised in appeal and decide the same through a speaking order — Moreover, no inquiry was conducted in instant case before passing removal order which is otherwise against principle of natural justice — Before awarding major penalty to a civil servant the regular inquiry under law is mandatory and any major penalty passed without conducting the regular inquiry in accordance with statutory provision is nullity in the eyes of law — Principle — Removal order was passed by an incompetent authority — Impugned judgment was set aside and appellant was directed to be reinstated in service — Civil appeal allowed. REMOVAL ORDER — (Incompetent authority)  In instant case, removal order of appellant was passed by incompetent authority. Supreme Court allowed appeal. Rashid Aleem, Ex-Constable, Reserve Police, posted at China Security Mangla, Tehsil & District Mirpur v. Inspector General of Police, AJK, Muzaffarabad and 4 others 2013 SCR (SC AJ&K) 847
  561. Section 47 — U/S 47, the matters relating to the terms and conditions of service of a civil servant, exclusively fall in the jurisdiction of the Service Tribunal — The High Court shall not interfere in the matters of terms and conditions of service of a civil servant. Syeda Zanib-un- Nisa v.  District Education Officer & others 2015 SCR 1246 (A)  
  562. —Article 47—Jurisdiction of the Service Tribunal —The abovementioned section clearly and totally prohibits the High Court from entertaining any proceeding in respect of a matter to which the jurisdiction of the Service Tribunal extends. Secretary Finance Deptt. &others v. Muhammad Rizwan Abbasi & others 2022 SCR 1387 (C)
  563. — article 47 — AJ&K Elections Act, 2020 — Sections 9 & 81 — Powers of Election Commission and Election Tribunal — held: the matter of qualification and disqualification of a returned candidate falls exclusively within the domain of Election Tribunal — under Article 47(2) of Constitution, where any administrative Court or Tribunal is established, no other Court has power to entertain any proceedings in respect of the matter to which the jurisdiction of such administrative Court or Tribunal extends — held: after establishment of Election Tribunal the jurisdiction of any other Court including the Commission is ousted under the Constitution. Gul Pathan v. Election Commission & others 2023 SCR 1 (F)
  564. Section 47 (1) (A) (B) (C) — administrative Courts/Tribunals — appeals before Supreme Court — section 47 is enacted particularly for administrative Courts and tribunals relating to matters enumerated in sub-section (1) (A) (B) and (C) — an appeal lies to Supreme Court if the Court being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal. No petition of leave to appeal lies from the order passed by other tribunals which do not fall in clauses (A) (B) and (C) of sub-section (1) or not covered under section 47. Sardar M. Hussain v. Dr. Najeeb Naqi & 12 others 2014 SCR 140 (B)
  565. S. 47-A — The employees of the Supreme Court and the High Court or not Government servants within the meaning of AJ&K Civil Servants Act, 1976 and the AJK Service Tribunal Act, 1975 — Both Supreme Court and High Court under the authority of law have got prerogative to make rules for their employees working in their establishment. ACCOUNTANT GENERAL and another vs Ch. MUHAMMAD SULEMAN 2002 SCR 518 (A)
  566. S. 47-E — Provisions corresponding to Article 208 of the Constitution of Pakistan were incorporated in Interim Constitution Act by way of amendment (Act XX of 1993) on 30-03-1993, the writ filed on 3.1.1993 — No rules framed yet by the High Court therefore, respondents were civil servants at the time of filing of writ petition — Now the legal position is that though the respondents were civil servants within the meaning of the Civil Servants Act — But the jurisdiction of the High Court in the matter was not barred because the question relating to Secretariat Allowance was not a term and condition of their service and was cognizable by the High Court. Contention that the High Court was debarred from entertaining the writ petition repelled. Azad Government and another v. Abdul Kabir Qureshi and others  1994 SCR 402 (F)
  567. –S. 47—AJ&K Service Tribunals Act, 1975—S. 4—matters f terms and conditions of civil servants—jurisdiction of— ouster of writ jurisdiction—In the matter of terms and conditions of  service,  the  jurisdiction  vests  in  the  Service  Tribunal  in exclusion  of  the  writ  jurisdiction—according  to  the  statutory provisions  the  matter  of  the  appointment  and  determination  of suitability of a person for appointment against a post clearly relate to  the  terms  and  conditions  of  civil  servants,  thus,  held  the jurisdiction of High Court is ousted. Tahir Farooq vs Dr. Muhammad Qasim & others 2018 SCR 86 (A, B & C) PLD 1991 SC (AJK) 57 rel
  568. —S.47—matters of terms and conditions of civil servants –-ouster of writ jurisdiction —broad principles—relating to the terms and conditions of civil servants, the writ jurisdiction cannot be exercised— If a civil servant apprehends any adverse order, he will have to wait till issuance of such order and thereafter may challenge the same through appeal but writ of prohibition cannot be filed— if the application, appeal or review etc. relating to departmental remedy in the matters of terms and conditions of civil servants are not timely attended and decided then the remedy of issuance of direction to the departmental authority can be sought but that tooS.47—matters of terms and conditions of civil servants —broad principles—relating to the terms and conditions of civil servants , the writ jurisdiction cannot be exercised — If a civil servant apprehends any adverse order, he will have to wait till issuance of such order and thereafter may challenge the same through appeal but writ of prohibition cannot be filed— if the application, appeal or review etc. relating to departmental remedy in the matters of terms and conditions of civil servants are not timely attended and decided then the remedy of issuance of direction to the departmental authority can be sought but that too without recording any findings relating to terms and conditions of service. Tahir Farooq vs Dr. Muhammad Qasim & others 2018 SCR 86 (D) 1999 SCR 204 rel. 1999 SCR 282, 2016 SCR 688, 2015 SCR 1246 & 2015 SCMR 456 ref
  569. —Article 47—Administrative Courts and Tribunals–Service Tribunal—exclusive Jurisdiction in matters of terms and conditions of civil servants—It has been held that in circumstances of the case and the bar  contained under Article 47 of the Interim Constitution, 1974, there was no occasion for the learned High Court to issue writ while cancelling the notification dated 21.12.2012, because the matter clearly pertains to the terms and conditions of service of the petitioner before the High Court. Guidelines formulated in the case titled Ejaz Ahmed Awan and 5 others Vs. Syed Manzoor Ali Shah and another, 1999 SCR 204, specially principles enumerated at serial No. 3 and 4, were reiterated and declared as violated by the High Court. Azad Govt. & others v. Arshad Khan & others 2019 SCR 266 (A) 2001 PLC (C.S) 144, 1997 PLC (C.S) 214 and 2003 SCMR 1562 ref
  570.                 —Article 47—Service Tribunals Act, 1975—-S.4— jurisdiction of Service Tribunal—right of appeal has been provided to the civil servants against any final order adversely affecting the terms & conditions of service but in the rest of matters neither the service appeal is provided nor the Service Tribunal is competent to issue direction for implementation of any favorable departmental order. Muhammad Hanif Mughal & others v. Secretary Forest & others 2019 SCR 777 (A)
  571. —Art. 47—jurisdiction of Service Tribunal— when a Service Tribunal is established, no other Court shall grant an injunction, make any order etc. in the matter falling in the jurisdiction of such Tribunal— the matters which falls within the ambit of terms and conditions of service of a civil servant, cannot be resolved by any Court including the High Court in exercise of writ jurisdiction.    Dr. Muhammad Saeed  Awan v. Azad Govt. & others 2022 SCR 156 (A)  1999 SCR 204 rel
  572. Article 47(2) & 44 — election dispute — writ — Article 47(2) mandates that where any administrative Court or Tribunal is established, no other Court has powers to entertain any proceedings in respect of matters to which the jurisdiction of such Court or tribunal extends — admittedly Election Tribunal is established, hence jurisdiction of any other Court including High Court is ousted under the constitution. Ch. Muhammad Ismail vs Ch. Maqbool Ahmed Gujjar & 24 others 2024 SCR 60 (D)
  573. —section 47-A—AJK Judicial Service Rules, 2011—section 23 of AJK Civil Servants Act, 1976—argument: section 47-A create room for employment in the Supreme Court and High Court, which includes the appointment of judicial officers in the District Judiciary as such the Judicial Officers are not civil servants—Held: appointment of judicial officers is made under AJK Judicial Service Rules, 2011, which is made under section 23 of the AJK Civil Servants Act, 1976. Under section 47-A, the Supreme Court and the High Court are empowered to determine the terms and conditions of employees serving under their respective administrative controls—who are not civil servants—Judicial officers being regulated under section 23 of AJK Civil Servants Act, 1976, are civil servants. Shezad Anwar & others v. Azad Govt. & others 2017 SCR 1541(D) 2014 SCR 1180 rel.
  574.                 —Section 47(a) — section 49 —establishment of administrative Courts and Tribunals—matters of terms and conditions —AJ&K Council and Assembly have been authorized to make laws for establishment of the administrative Courts and Tribunals to exercise exclusive jurisdiction in the matter relating to terms and conditions of the persons who are or have been in the service of AJ&K including disciplinary matters—u/s 49 the matter is also confined to the terms and conditions of the persons in the service of AJ&K. Industrial Development Bank Limited v. Sajid Hameed & others 2017 SCR 850 (B,C &D)
  575. Articles 47 and 44 —jurisdiction of the Service Tribunal and  the  High  Court—writ—terms  and  conditions  of  service— jurisdiction conferred upon the Service Tribunal to exercise powers where  final  order  is  passed—  where  prayed  relief  relates  to issuance of direction to the concerned to act according to law or do what is required by the law to be done or a direction to perform such function is sought, then in such like matters the jurisdiction of the  Service  Tribunal  is  not  extended  rather  the  High  Court  is competent to exercise its extraordinary jurisdiction. Azad Govt.& others vs Syed Zhoor Hussain Shah &others 2018 SCR 876 (B)
  576. S. 47 & 49- Service Tribunals Act creates a right in a civil servant to challenge an order in respect of terms and conditions of his service if he feels aggrieved — S.49 lays down that terms and conditions of service may be regulated by law powers of the Government or other authorities- clearly defined in Civil Servant Act-Action must be in accordance with law- u/s – 47 authorities have been made answerable to the Service Tribunal. Muhammad Azad Khan v. The Secretary AJK Council 1993 SCR 387 (E)
  577. S. 48 — Read with Public Service Commission Act and the P.S.C. (Function) Rules require that the merit and suitability of the candidates must be judged by the P.S.C. — These functions cannot be performed by any other authority — In the present case this job has been performed by the legislature through the impugned Act which declared them ‘validly selected’ without going through the selection procedure. Azad Govt. v. M. Youns Tahir & other 1994 SCR 341 (S)
  578. S. 48 — Public Service Commission — PSC Act was enforced on 9.3.1986 — Before enforcement of the Act, 1974 — no Public Service Commission was in existence — First time PSC (Functions) Rules, 1978 were introduced and thereafter Act, 1986 was enacted — Act, 1986 has been amended a number of times — last amendment was introduced through Ordinance No. LXVIII of 2012 on 9.7.2012 — S. 2 was substituted — S. 3 was amended, S. 4-A was added. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (A)
  579. Section 48 — The Public Service Commission is a constitutional institution having pivotal role in civil services — It is not an ordinary executive body constituted by the Govt. Abdul Baseer Tajwar v. AJ&K P.S.C. & 2 others 2016 SCR 1599 (L) 1996 SCR 40, ref. & rel.
  580. Section 49 — continuation previously enforced laws in AJ&K — conditional till enactment of new laws — Under the provision of the section 49 of Azad Jammu and Kashmir Interim Constitution Act, 1974, the continuation of previously enforced laws was conditional till enactment of new laws. Taskeen Naz v. Fehmida Begum & 11 others 2016 SCR 1436 (A)
  581. Ss. 48 and 49 — Section 49 under which the Civil Servants Act has been enacted is to be read subject to section 48 under which the P.S.C. Act has been enacted. Thus in case of conflict P.S.C. Act has been enacted. Thus in case of conflict P.S.C. Act including the rules made thereunder would override the provisions of any statute referable to section 49. Azad Govt. v. Muhammad Youns Tahir & other 1994 SCR 341 (BB)
  582. Ss. 48 & 49 — Public Service Commission — purpose, scope and functions of PSC — sections provide for establishment of PSC and service of AJ&K — the Act provides that if a person wants to enter into the service of AJ&K he shall apply to P.S.C. — the Commission shall advertise the post and after receiving applications conduct test and interview for the said post and shall forward the recommendations to the Govt. for appointment. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (D) 1994 SCR 341 ref.
  583. S. 49 — Term ‘law’ includes rules, regulations, instructions etc. and law means existing law. Sardar Muhammad Farooq v. AJ&K Govt. and 5 others 2007 SCR 196 (E)
  584. S. 49 — See Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.2 (1)(B)(ii). Zafar Iqbal v. Secretary Education of AJ&K (Colleges), Muzaffarabad Azad Kashmir 2012 SCR 378
  585. —section 49—Service of Azad Jammu and Kashmir—power of the Government and the Council to regulate appointments—on basis of Act of the Assembly and the Council—section 30-A—Assembly shall have separate Secretariat and by law regulate recruitment and conditions of service of staff of Assembly Secretariat—AJK Council vested with executive authority to recruit and regulate terms and conditions of Council employees— and to establish its own Public Service Commission—. Shezad Anwar & others v. Azad Govt. & others 2017 SCR 1541 (C)
  586. —Article 49, AJ&K Interim Constitution 1974— Services of AJ&K—Article 49, of Interim Constitution, demands that services may be regulated—laws and rules enacted to regulate civil services have Constitutional backing and it’s will of Constitution that same be followed as prescribed—the framers of the AJ&K Interim Constitution 1974, under Article 49, provided that subject to the Constitution, the appointment of persons to and the terms and conditions of service of persons in, the service of Azad Jammu and Kashmir may be regulated by law. It is the Constitutional demands that civil service, may be regulated by laws, meaning thereby the service laws i.e., acts, rules and statutory instructions enforced, time to time, to regulate the civil service have Constitutional backing and it is command and will of the Constitution that the civil service laws are to be followed as prescribed by same. Fahad Ibrar & another v. Azad Government & 4 others  2022 SCR 1163 (B)
  587. — Article 49 — AJ&K Civil Servants Act, 1976 — section 23 — rules making powers — the Govt. is authorized to regulate the terms and conditions of persons in the service of AJ&K — u/Article 49, the legislature enacted Civil Servants Act, 1976 — u/s 23, the Govt. is empowered to make rules — thus power of the Govt. cannot be curtailed by another enactment — Jan Muhammad & others versus Azad Govt. & others 2023 SCR 769 (B) 2018 SCR 1079, 2014 SCR 883 & 2010 SCR 156 ref.
  588. — Article 49 — AJ&K Civil Servants Act, 1976 — Police Act, 1861— Police Rules, 1934 — Police Force — terms and conditions of service — regulation of — for the purpose of running the affairs of the Government and public institutions, the legislature u/Art. 49, has been empowered to regulate by law the terms and conditions of service of persons, in the service of AJ&K, Act, 1976 was enacted to regulate the appointment and conditions of persons in the service of AJ&K for disciplined police force, the Govt. adopted Police Act, 1861 vide adaptation of law Resolution 1948 — the members of Police Force have been declared civil servants for the purpose of section 4 of Service Tribunals Act, 1975 — the matters of discipline of police men are governed by Police Act  and Police Rules etc. — but all police employees are governed by Act, 1976 and rules made thereunder, in respect of matters to which Police Act, 1861 and Police Rules, 1934 do not apply. Home Department & 05 others versus Aqib Farooq & 22 others 2023 SCR 1200 (A) PLJ 1993 SC (AJ&K) 39
  589. — Article 49 — AJ&K Civil Servants Art, 1976 — Section 23 — rules making powers — Art. 49 authorized Govt. to regulate terms & conditions of persons in the service of AJ&K & in consequence Act, 1976 was enacted — Section 23 of Act, 1976 empowers Govt. to make Rules for carrying out purpose of the Act — this power of the Govt. cannot be curtailed by another enactment. Dr. Zaheer Mehmood vs Azad Government & others 2024 SCR 306 (C) 2014 SCR 883 2018 SCR 1079 ref. 2010 SCR 156
  590. — Article 49 — manner of appointment in civil service — – constitutional will and command require that appointments into service of AJ&K and terms and conditions of civil servants may be regulated by law, meaning thereby that all matters relating to civil servants shall be conducted under prescribed Act, rules or regulations or any other law — Kanwal Shahzadi vs Muhammad Naeem & others 2024 SCR 348 (C)
  591. section 50 — Chief Election commissioner — appointment of — legislative history — Chief Election Commissioner is appointed by the President on the advice of AJ&K Council — In original section 50 of Act, 1974, word ‘advice’  was not provided — it was provided that Chief Election Commissioner shall be appointed by the President — the words ‘advice of Council’ were inserted through 1st amendment Act, 1975. AJ&K Council v. AJ&K Govt. & 8 others 2016 SCR 145 (A)
  592. Section 50 — Chief Election Commissioner(Terms and Conditions) Act, 1992 — Section 3 — Chief Election Commissioner(Terms and Conditions) (amendment) Ordinance XIX of 2015 — advice — implementation of — under section 50 advice for appointment of Chief Justice High Court as Chief Election Commissioner issued — under section 3 of Act 1992, the Chief Justice High Court is qualified to be appointed as Chief Election Commissioner — advice was validly issued and valid advice has to be implemented by the President in letter and spirit. President has no power to refuse to issue order upon a validly issued advice. AJ&K Council v. AJ&K Govt. & 8 others 2016 SCR 145 (K)
  593. Section 50 — Chief Election Commissioner (Terms & Conditions)(amendment) Ordinance, 2015 — section 6-A — Acting Chief Election Commissioner — the Chief Election Commissioner has to be appointed by the President on the advice of the Council — the stop-gap arrangement for appointment of Acting Chief Election Commissioner can only be made in the light of section 50 — the Acting Chief Election Commissioner can be appointed on the advice of Council — Held: without advice Acting Chief Election Commissioner cannot be appointed. AJ&K Council v. AJ&K  Govt. & 8 others 2016 SCR 145 (M) 1993 SCR 131 ref.
  594. Section 50 — Chief Election Commissioner (Terms & Conditions)(amendment) Ordinance, 2015 — section 6-A — Acting Chief Election Commissioner — appointment of — vires — challenge to — under section 50 Chief Election Commissioner is appointed by the President on the advice of the Council — when the office of the Chief Election Commissioner is vacant, Acting Chief Election Commissioner can only be appointed on the advice of the Council — Held: the mode of appointment of Acting Chief Election Commissioner in section 6-A is against the provisions of section 50 of Act, 1974 —section 6-A to the extent of appointment of Acting Chief Election Commissioner is valid law but the portion of 6-A which provides the appointment without advice of the Council is not a valid law. It is ultra vires the section 50 of Act, 1974. AJ&K Council v. AJ&K  Govt. & 8 others 2016 SCR 145 (N)
  595. Section 50 — Chief Election Commissioner (terms & Conditions) Act, 1992 — Chief Election Commissioner (terms & Conditions)(amendment) Ordinance, 2015 — section 6-A — Acting Chief Election Commissioner — proposition whether incorporation of section 6-A falls within the terms and conditions of Chief Election Commissioner — the legal phrase “Term & Conditions” has neither been defined in Act, 1974 nor in Act, 1992 — according to the celebrated principle of law the ordinary dictionary meanings have to be adopted — No ambiguity for the word “term” — according to the dictionary meaning, happening of uncertain event and happening of something in future are included in the meaning and scope of the word “condition” — when already office is created by the constitution and a situation of temporary vacancy or eventuality arises, it falls within the scope of condition — Held: meeting the eventuality of temporary occurrence of vacancy in the office of Chief Election Commissioner falls within the scope of prescribing the condition which is within the competence of legislature — parimateria provisions of Civil Servants(Appointment and Conditions of Service) Rules, 1977 provide to meet the conditions of happening  of temporary vacancy against a post, different modes for stop-gap arrangement i.e Acting/ Current Charge and Officiating — all these situations are administrative arrangements to meet the eventualities of vacant posts as stop-gap arrangements which have neither been considered as creation of new office nor a new induction. AJ&K Council v. AJ&K  Govt. & 8 others 2016 SCR 145 (R&T)
  596. —Art. 50—Election Commission—function and duties of–delimitation— the Election Commission is duty bound to organize and conduct the election and to make such arrangements as necessary to ensure the transparency/fairness— the delimitation of the constituencies is part of the election process and it should be done by the Election Commission. Inhabitants of constituency No.LA-XXVIII Versus Waheed Mughal & 18 others 2021 SCR 144 (A)
  597. Section 50 & 21(7) — Chief Election Commissioner(terms & Conditions) Act, 1992 — sections 3 and 5 — Chief Election Commissioner — advice for appointment — Acting Chief Election Commissioner —appointment of — challenge to — Held: advice for appointment of Chief election Commissioner under sections 50 and 21 (7) read with sections 3 & 5 of Act, 1992 has validly been issued, which is still in existence — the Acting Chief Election Commissioner cannot be appointed — when law has been declared ultravires the Constitution, the appointment order of Acting Chief Election Commissioner is also no valid. AJK Council v. AJK  Govt. & others 2016 SCR 145 (O)
  598. Sections 50 & 42-D — appointment of Chief Election Commissioner — legislative competence — pith & substance of the matter — determination of — In Act, 1974, not only the Chief Election Commissioner but the appointments in the other offices are made on the advice of the Council including appointment of Chief Justice AJ&K and Judges of Supreme Court and Chief Justice and Judges of the High Court — under section 42-D, the Assembly and the Council; both are empowered to legislate in respect of review power of Supreme Court but the matter is not enumerated in the Council Legislative List. The Council has no executive authority over these offices — Held: The pith and substance is material for determining the legislative ambit — The functions of Chief Election Commissioner are to prepare the Electoral Rolls conducting elections to the AJ&K Legislative Assembly and elections to the Council — The A K Govt. is exercising authority in the matters relating to the Chief Election Commissioner, budget, the staff and all expenses incurred on preparation of voter lists — Further held: the major functions of the Chief Election Commissioner, except elections to the Council, relate to the matters falling in the legislative competence of Legislative Assembly. Presidential reference v. — 2015 SCR 1249 (N)
  599. sections 50 & 50-A — Chief Election Commissioner(Terms & Conditions) Act, 1992 — appointment of Chief Election Commissioner — mode of initiation of process — status of—advice dated 16.11.2015 —concept of panel — according to the admitted position, there is no prescribed manner for initiation of process for appointment of  Chief Election Commissioner — for declaring any act illegal, the prerequisite is that there should be law on the touch stone of which it can be declared that whether the challenged act of a person is legal or illegal — where there is a vacuum and no express provision exists, in that state of affairs any act done cannot be declared illegal — according to the settled principle of law acts done by the competent authority are ordinarily deemed to be valid — even from the enforcement of Act, 1992, there remained no consistent practice that the appointment of Chief Election Commissioner is necessary initiated  or made on the basis of panel sent by AJ&K Govt. or President — under section 50-A, the same phrase has been used for appointment of Auditor General — No one claimed that Auditor General is appointed from the panel sent by AJ&K Govt. or the case of appointment is initiated by the Govt. or President — Held: the advice issued by the AJ&K Council dated 16.11.2015 is valid and has been issued under the constitutional provision having force of law. AJK Council v. AJK  Govt. 2016 SCR 145 (Y)  
  600. — article 50 — Election Commission — nature and duties of — the commission, a constitutional body is duty bound to organize and conduct the election for the office of President, the Assembly, the Council and local govt. bodies — the commission shall make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law. Gul Pathan v. Election Commission & others 2023 SCR 1 (A)
  601. — article 51(2) — subject of nationality and citizenship falls within authority of AJK Government — Held: After 13th Constitutional amendment 2016, the subject with respect to nationality, citizenship etc. is the authority of Azad Jammu and Kashmir Government. Now the Azad Jammu and Kashmir Government in accordance with Article 51(2) (as amended), of Interim Constitution of Azad Jammu and Kashmir 1974, is in a position to make suitable amendments in Azad Jammu and Kashmir State Subject Act, 1980, and the Azad Jammu and Kashmir State Subject Rules, 1980, keeping in view the due regard to the rule of law laid down by this Hon’ble Court from time to time reflected in the judgment referred to hereinabove. Sabeel Ahmed Chohan v. Iftikhar-ul-Hassan & others 2023 SCR 303 (LL)
  602. — thirteenth Constitutional Amendment, 2018 — Article 51(2) — AJK State Subject Act, 1980 and AJK State Subject Rules, 1980, were promulgated by AJK Council — After 13th Constitutional Amendment, under Article 51(2), the same shall be deemed as enacted by the AJK Legislative Assembly and rules framed by AJK Government — The procedure for issuance of the State Subject Certificate and Domicile has been provided in Azad Jammu and Kashmir State Subject Act 1980 and the State Subject Rules 1980 (relevant provision whereof has been reproduced earlier). The aforesaid enactments were framed by Azad Jammu and Kashmir Council and after coming into force of 13th Constitutional Amendment under Article 51(2) the aforesaid enactments shall be deemed to have been enacted by Azad Jammu and Kashmir Assembly and the Government as the case may be. The power to amend the State Subject Act, 1980 and Rules framed thereunder now vest to the Azad Jammu and Kashmir Legislative Assembly and the Government as well. Sabeel Ahmed Chohan v. Iftikhar-ul-Hassan & others 2023 SCR 303 (AA)
  603. Status of property — acquired by Government — S. 52-A of the Constitution — the property acquired for the purpose of Government, vests in the President — all the contracts and other matters relating to property shall be made and executed in the name of President or on his behalf by such a person in such manner as the President may direct or authorize — the Government is competent to utilize the same according to its requirements. Same like, the preparation of the policy and developmental schemes are also within the competence of the Government. Raja Tahir Majeed Khan & 7 others v. Azad Govt. & 6 others 2014 SCR 272 (A)
  604. S. 52-A — Rules of Business, 1985 — rule 10 — provide — procedure for disposal of Govt. property and signing of contract on behalf of Govt. — MOU/Agreement signed without proper sanction of Govt. and without adopting proper  procedure — in view of the aforesaid section 52-A and rule 10 — the Government is duty bound to initiate all the procedure/process for execution of MOU/agreement through Law Department — in absence of this, the alleged MOU/agreement cannot be treated as valid document — Secretary Health, who is one of the signatories of MOU/agreement did not accord prior permission/approval from the Government, which was prerequisite for the purpose and in absence of such approval no document can be declared as a valid document. AJK Govt. v. Mohi–ud–Din Islamic University 2014 SCR 382 (C) 2011 SCR 299 ref.
  605. Section 52-A — transfer of acquired land — Under the constitutional provisions the acquired land/ government property can only be transferred by the Government in the manner regulated by law. Rehmatullah Khan & 3 others v. Azad Govt. & 13 others 2014 SCR 1385 (C) Ghulzaman Awan vs.   Azad Govt. & others  (Civil appeal No. 133/ 2011 decided on 14.11.2011), 2012 SCR 367 & 2014 SCR 382  rel.
  606. Section 52-A — disposal of Govt. land — AJ&K Resumed Land Disposal Rules, 1984 and AJK Land Commission (Sale and Disposal of Resumed Land) Rules, 1992, provide specific conditions and mode for disposal of land including one, the open auction. Rehmatullah Khan & 3 others v. Azad Govt. & 13 others 2014 SCR 1385 (E)
  607. Section 52-A — transfer of Govt. property — must be in accordance with law — lease without following law — challenge to — the Govt. and legislature are advised that for carrying out the purpose of section 52-A (5) for transfer of State/ Govt. land — there must be law for regulating the manner of transfer of the State/ Government land.  In absence of any such law for the transfer of Government property, exercise of powers by the Government in an arbitrary manner amounts to offend the constitutional provisions. Rehmatullah Khan & 3 others v. Azad Govt. & 13 others 2014 SCR 1385 (F)
  608. Section 52-A(2) — acquired land — according to the scheme of law and the constitutional provisions,  all such property vests in the President as envisaged under the Constitutional provisions  of subsection 2 of section 52-A. Rehmatullah Khan & 3 others v. Azad Govt. & 13 others 2014 SCR 1385 (A)
  609. Under Section 52-A (5), the transfer of Govt. land must be regulated by law — the basic essence and spirit of the constitution in the prospective of the fundamental rights, especially, equality before law, is to provide mode for equal treatment of law — no doubt, the Government can grant lease of the Government land but for grant of lease of such land, there must be clear prescribed manner known to the State subjects so that the lease should be granted on the basis of competition for avoiding arbitrary exercise of powers by the Government Rehmatullah Khan & 3 others v. Azad Govt. & 13 others 2014 SCR 1385 (D)
  610. Ss. 52-A(5) & 42 — Transfer of land — Appellants submitted application before the Prime Minister claiming that they were owners of land which adjoined to Forest Land and that they wanted to exchange same with Forest Land — Prime Minister issued direction for process of the case and after some process allowed the exchange prayed for — Respondents who were permanent residents and the owners of land in the same village, challenged propriety of said order of the Prime Minister in writ petition and High Court granted writ prayed for — Validity — Under provisions of S.52-A(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974, transfer of land by the Government or the Council would be regulated by law — Government or other Public Authorities had no discretion to distribute the State property as charity — Appellants had failed to refer any other provision of law empowering the Government to transfer the land to private person — Government, without making law according to spirit of S.52-A of Azad Jammu and Kashmir Interim Constitution Act, 1974, could not transfer the State land to any person or exchange the same. Ghulam Rasool v. Said Ahmed 2012 SCR 367 (A, C, D, F & H)
  611. —Section 52(4) —Held: except in the matter of relief sought under sub section 3 of section 52 of the constitution, process in no other case can be issued against the Chairman of the
  612. Council or the President. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (K)               
  613. S. 56-C of AJ&K Interim Constitution Act — Identical to S.6 of General Clauses Act — Reveal that accrued rights cannot be adversely affected under any enactment repealed or substituted by amendment or enactment of a new law. Abdul Rasheed and 85 others v. Board of Trustees and 3 others 2008 SCR 417 (F)
  614. Effect of repeal of laws — Section 56-C read with General Clauses Act — Question raised with regard to validity of acts done and actions taken under the repealed ordinance — Held: If the law is repealed, mere absence of any validating clause doesn’t invalidate the actions taken or acts done specially when the repealed law is followed on the same subject. Further held: The actions taken under repealed statute will remain intact. Kh. Abdul hanan & 8 others v. Azad Govt. & 21 others 2010 SCR 496 (A)
  615. — Article 56-C — General Clauses Act, 1897 — section 6 – – AJ&K Pre-emption Act, 2016 — section 33 — repeal & savings — pending suits – effect of repeal — contention that Article 56-C and section 6 of Act, 1897 protect the accrued rights or remedy availed before promulgation of any Act — held u/s 33 only those suits have been protected in which judgments and decrees have become final and pending suits cannot continue except those in which right of pre-emption is claimed under newly promulgated Act — contention repelled. Amjad Hussain vs Mst. Sakeena Bibi & others 2024 SCR 146 (F)
  616. Section 57 — overriding effect of Constitution over other laws — Question of validity of Act, 1974 — classes of State Subjects — Classes of State Subjects are admissible under the provisions of Act, 1974 which have got overriding effect and no other Court including Supreme Court can call in question the validity of Act, 1974. The prohibition is expressly provided under section 57 of Act, 1974.  Haider Ali & another v. Qurat-ul-Ain Latif & 9 others 2014 SCR 196 (I)
  617. Amendment of the Constitution-If an amendment is brought by the Legislature of competent authority the same cannot be struck down on the ground that it is violative of the basic structure of the Constitution- the authority competent to amend the Constitution has full powers and no embargo can be placed on the same except which the Constitution itself postulates. Kh. Noor-ul-Amin v. Sardar Muhammad AbdulQayyum Khan. 1993 SCR 27 (A)
  618. The appellant did not attain the necessary place in the merit list prepared by the Public Service Commission in 1990 … He has no right to be considered for appointment on a post which fell vacant in 1992 or 1993.  Raja M. Ayyaz Khan v. Azad Govt. and another 1995 SCR 281
  619. Fiscal Law — Retrospectively of — No embargo imposed upon the legislature by the Interim Constitution Act — Findings of the High Court without any substance — The authorities cited by the learned counsel for the respondents are distinguishable — Finance Act 1995 which was adapted retrospectively by Ordinance No.1 of 1998 could operate retrospectively. Commissioner Income Tax and another v. Asian D.Enterprises and 5 others 2000 SCR 47 (A)
  620. It is well settled proposition of law that relief in writ petition being discretionary in nature is granted in light of circumstances of each case. Baqa Muhammad Khan v. Custodian of Evacuee Property & others 2001 SCR 344 (B)
  621. It is celebrated principle of law that jurisdiction conferred by an Act impliedly give powers to the authority for doing all acts and implying means which are found essentially necessary for execution of such directions issued in exercise of vested jurisdiction — The law department issued the notification without moving the council of Judges, which amounts to disobeying the order of council of Judges. AJ&K Govt. and 2 others v. Ch. M. Saeed and 44 others 2002 SCR 378 (B)
  622. Judgment of the Supreme Court — Binding nature of — All the Courts including High Court are bound by the judgment of the Supreme Court — The directions recorded by the Supreme Court should not be overlooked or bypassed as that would amount to violation of the Interim Constitution Act and the Supreme Court Rules. M. Anwar v. Maqsood Ahmed Minhas 2002 SCR 522 (A) (2000 SCR 22R.)
  623. Judgment of the Supreme Court — Binding nature of — The petitioner without complying with the orders of the Court initiated fresh investigation in respect of a matter which had been closed against the respondent  — Under the provisions of Constitution it is mandatory for all the functionaries of the State to act in the aid of the judgment of the Supreme Court — It was mandatory for the petitioner to implement the judgment of the High Court which was affirmed by this Court —  Instead of complying with the judgment of this Court petitioner No.2 removed the respondent from his service in an arbitrary and unguided manner — Petition dismissed. IGP AJK Mzd. And other v. Muhammad Ashraf Khan 2004 SCR 91 (B)
  624. The Constitution guarantees a right to a citizen to be properly compensated before his land or other property is acquired. MDA.  and 3 others v. Ch. Aarif Najeeb & 13 others 2007 SCR 545 (C)   
  625. Pay protection — Finance Department accorded approval to the cases of pay protection of certain employees who were transferred from autonomous bodies and posted in Government departments or otherwise — In case of respondent it was refused — Held: Finance Department has different yardsticks — This attitude contravenes the provisions of the Constitution whereby all the State Subject are held equal before law and entitled to equal protection law — Appeal dismissed. Azad Govt. & another v. Sardar Muhamad Ashiq Khan 2008 SCR 142 (B)
  626. So far as vested and accrued rights under a repealed Act are concerned, these rights are not affected by enactment of a subsequent law whether enacted through a new law or altered through amendment or enforced through any other method by Legislature or any other legislative organ of the State, unless it is specifically so provided. Abdul Rasheed v. Board of Trustees 2008 SCR 417 (G)
  627. The Constitution enshrines basic rights to the people of this State, which rights are to be interpreted and allotted wider meanings and restrictions or restraints imposed by Constitution are to be avoided as for as possible — In view of the fact that social justice is signature tune of the Constitution and all laws are enacted to further the cause of justice relating to upbringing of society and its individuals — The withdrawal of rights cannot be allowed in routine and on the basis of any authority of a Court recorded in cases involving altogether different facts. Abdul Rasheed and 85 others v. Board of Trustees and 3 others 2008 SCR 417 (J)   
  628. Civil Servant — Deputation Policy — Grievance agitated in service appeal was that according to petitioner’s deputation order, three years term had been fixed which had not yet been completed, hence, before completion of the term, repatriation was illegal — Service Tribunal dismissed appeal — Whether a deputation could be repatriated to his present department before completion of his term or not? — Moot point — It could not be said that petitioner was the only person who had been singled out — Neither borrowing agency required further service of petitioner nor leading agency had any objection for his repatriation — Said condition clearly speaks that on one month’s prior notice, either from lending or borrowing agency, the deputationist can be repatriated to his parent department — Petitioner while accepting said condition had joined duties in borrowing agency — According to laid down policy, even before completion of the stipulated term of deputation the borrowing organization may revert a deputationist to his parent department — Impugned judgment of Service Tribunal did not suffer from any illegality, hence no interference was required by Supreme Court — Petition for leave to appeal was refused. DEPUTATIONST — (Repatriation) A deputationist can be repatriated to his parent department even before completion of prescribed term. Supreme Court refused petition for leave to appeal. Raja Kaleemullah Khan v. Azad Govt.    2013 SCR  736
  629. AJK Civil Servants (Efficiency & Discipline ) Rules, 1977, R.4 — AJK Civil Servants (Removal from Service (Special Powers) Act, 2001, S. 5 — Misconduct — Impugned punishment of compulsory retirement from service was imposed upon appellant — Absence of notice/inquiry — Service Tribunal dismissed appeal because of superannuation was done —  Whether without issuing show-cause notice, conducting the required proceedings and holding an inquiry, the departmental authority was empowered  to issue compulsory retirement order of a civil servant merely on ground of alleged serious misconduct — Question for determination — Validity — Under the statutory provisions of civil service laws, compulsory retirement is a major punishment and for imposing such punishment on a civil servant, the authority is under a legal obligation to follow the procedure prescribed by law — Mandatory procedure laid down by law had not been adopted by authority, thus order challenged before Service Tribunal on the face of it was illegal — According to law, issuance of retirement order after attaining the age of superannuation is a different matter — Impugned judgment of Service Tribunal as well as the order of compulsory retirement of appellant was set aside — Civil Appeal was accepted by Supreme Court. Compulsory Retirement Order — (Absence of inquiry/show-cause notice) Punishment of compulsory retirement was upon appellant without holding inquiry or show-cause notice. Service Tribunal had dismissed appeal merely on ground the appellant was already reaching the age of superannuation. Appeal was accepted by Supreme Court. M. Yousaf Ch., Naib Qasid, Local Govt. & Rural Development Department, Mzf’abad v. Director General, Local Govt. & Rural Development Department, Azad Govt. of the State of J&K, Mzf’abad & 2 others 2013 SCR  749
  630. AJK Upgradation of Posts Rules, 1984 — Upgradation of Post — Claim of party — Time-barred representation — Limitation for filing the departmental appeal/review or representation has been expressly prescribed — Said respondent had not approached proper forum within prescribed period — It was enjoined upon Service Tribunal to first of all determine the question as to whether through impugned notification, representation/review had been rightly dismissed being barred by time or not — Service Tribunal had not even bothered to ponder on said important basic vital legal proposition raised before it according to laid down principle of law — Held: As representation/review on the face of it was time-barred, thus, while rejecting same, competent authority had not acted in violation of law — Further held:  Services of a civil servant are regulated by law — For each and every post, rules are enforced which clearly mention the grade of post, channel of promotion, criteria of upgradation of post, promotion of incumbent and without any statutory provision, neither any civil servant can be granted higher grade in random manner nor can be any post upgraded — Mere nomenclature of any post does not entitle the incumbent of the grade and privileges of the same nomenclature of the post in any other department or organization — In such situation, neither a principle of parity was attracted nor it was recognized by any principle of law enunciated by superior Courts — Tribunal had fell in grave error of law and facts while passing impugned judgment which was totally against law, hence was not sustainable — Impugned judgment was set aside Supreme Court — Civil appeal allowed.  UPGRADATION OF POST — (Time-barred representation) With regard to issue of upgradation of post, departmental representation filed by said respondent was dismissed being barred by time. Service Tribunal had erroneously accepted appeal. Appeal was allowed by Supreme Court. Azad Govt. through its Chief Secretary, Azad Kashmir, Mzaf’abad and another v. Raja Habibullah Khan, Protocol Officer Wing, Services and General Administration Department, Mzaf’abad and another 2013 SCR 754    
  631. Service matters — writ — Held: in the matters relating to terms and conditions of civil servants, the Service Tribunal has got exclusive jurisdiction and writ petition is not competent. Samina Kabir v. Shamim Akhtar & 7 others 2014 SCR 223 (D) 1999 SCR 204 ref.
  632. Writ against National Bank of Pakistan — its maintainability — the NBP is not performing the functions in connection with the affairs of AJ&K Govt. or State, therefore, writ not maintainable. Raja Mohammad Arif Khan & another v. Regional HR Chief NBP and 3 others 2014 SCR 564 (B) PLJ 2002 SC (AJ&K) 101 & PLJ 2000 SC (AJ&K) 181 rel.
  633. A combined reading of Rules, 1999 and financial autonomy notification dated 2.3.2006 leaves no doubt that the High Court has complete control and superintendence over the subordinate Courts and in the matters relating to the High Court and subordinate judiciary, it is only the High Court which has control in all matters and the Government has nothing to do in the matters relating to the administration or otherwise. M. Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (C)
  634. Service of Azad Jammu and Kashmir — Definition of — Service of Azad Jammu and Kashmir means any service, post or office in connection with the affairs of Azad Jammu and Kashmir, including the Council — Held: According to this definition, all the persons holding the judicial office or post are in the service of Azad Jammu and Kashmir. M. Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (T)   
  635. Parliamentary form of Government in AJ&K — Constitution has clarified the position that the executive authority of the Azad Jammu and Kashmir shall be exercised by the Government consisting of the Prime Minister and the Ministers — The Government shall act through the Prime Minister who shall be the Chief Executive of the Azad Jammu and Kashmir and in performance of his functions under the Constitution Act, 1974, the Prime Minister may act directly or through Minister. M. Yousaf Haroon v. Competent Authority & 4 others 2014 SCR 1180 (KK)
  636. Judiciary — Buildings for Courts — accommodation & facilities to judiciary — duty of the Govt. — Equal treatment among the state organs and institutions — the better facilitation is necessary to improve the standard of administration of justice — according to the constitutional scheme, it is the duty of the Government to provide proper accommodation and facilities to the judiciary. Rehmatullah Khan v. Azad Govt. & others 2014 SCR 1385 (K)  PLD 2014 Lahore 433, rel.
  637. Held: This Court even without a valid appeal, has power to decide the issue involved in the case while exercising inherent powers for doing complete justice. Collector land acquisition v. Qamar Abbas Rizvi & 4 others 2016 SCR 114 (E) PLD 1990 SC (AJ&K) 23 rel.
  638. Finance Department of Pakistan — memorandum of — responsibility in affairs of AJ&K — not assigned any role under AJ&K Interim Constitution Act, 1974 — private petitioners — have no locus standi to represent Finance Department of Pakistan — So far the objection of Finance Department of Pakistan according to the referred memorandum is concerned, as per the provisions of Act, 1974, neither the Finance Department of Pakistan has been assigned any responsibility or duty relating to the affairs of Azad Jammu and Kashmir, nor the petitioners have any locus standi to represent it. These are just administrative matters between the Government of Azad Jammu and Kashmir and Finance Division of Pakistan. M. Akhtar v. Azad Govt. 2016 SCR 853 (C)
  639. Equal treatment with state subjects — malafide — judicial review — All the persons living in a constituency have to be meted with equal treatment and have equal rights in the development schemes—No doubt, it is prerogative of the Government to determine the priority of the schemes but all the areas be treated alike — Once a scheme has been approved by the Government, the shifting of the said scheme from one area to another on the ground that the inhabitants of the said area are political opponents and with mala-fide, intention, attracts the powers of judicial review — When an action is done by the authority which on the face of it appears to be colourful exercise of the authority with mala-fide intention, the Court in judicial review can examine the reasonableness of the action and strike down such action. Azad Govt. & 5 others v. Inhabitant of village Baghar 2016 SCR 696 (C) PLD 1969 SC 14 & PLD 1974 SC 151 rel. 
  640. —Schedule 1—-oath of President, members of Assembly and council—cause of accession of State—oath of Judge—to administer justice according to constitution and law—oath of the office of President and members of Assembly & Council provides that they will remain loyal to the country and the
  641. cause of accession of the State of Jammu and Kashmir to Pakistan— The word country very clearly refers to the political country of Pakistan, not in its literal sense as a village or a district— the oath is further qualified by the words of accession of the State to Pakistan, which distinguishes between the words country and State—Held: The Judges are to administer the justice according to the Constitution and Law not according to their wishes or whims. The oath of Judges obliges them to administer justice according to law enforced in AJK—There is no law in AJK which declares it as a country separate from Pakistan. The President of AJ&K v. Muhammad Riaz Akhter Choudhary Chief Justice AJ&K 2017 SCR 759 (N)
  642.                                                 —writ—contractual liabilities—Held: under the constitution there is no specific or absolute bar in exercising writ/jurisdiction in the matter of contractual obligations, liabilities or claims based upon contracts, subject to exceptions—every case has to be judged and decided according to its own peculiar facts and circumstances. AJK Government & another v. Muhammad Siddique Khan & 3 others 2017 SCR 640 (G) 1992 SCR 381 distinguished
  643. —according to scheme of—AJ&K Interim Constitution Act, 1974—the Government answerable before Assembly—Powers of Assembly—to approve or disapprove policies—and make laws—According to the constitutional scheme the Government is answerable before the Assembly and the Assembly is vested with the powers to approve or disapprove any policy or make laws etc. subject to constitutionally provided limitations. Ch. Latif Akbar & others v.Azad Govt. & others 2017 SCR 305 (I)
  644.  —Jurisdiction of the High Court— matters of terms and conditions of civil servants —writ for impositions of penalties determined by inquiry committee—authority converted the major penalties into censure and stoppage of increment— issuance of status quo order by the High Court against the order of authority —declared without jurisdiction—The perusal of the memo of subsequent writ petition shows that although different prayers were made but the very purpose for filing the same was imposition of the penalties recommended by the inquiry committee which clearly relates to the terms and conditions of the civil servants. From this angle, the writ petition was even not competent and the learned High Court without jurisdiction issued the status quo order. Ch. Khallid Sultan vs Competent Authority & another 2018 SCR 144 (B)
  645. —Writ jurisdiction—for issuance of writ to the concerned authority to file Constitutional Reference against judge of the Superior Court—Held: Such writ is not maintainable. Robkar-e-Adalat v. Liaqat Ali Mir 2020 SCR 676 (E) PLD 1998 SC 103 rel
  646. —determination of—for determination of the process of consultation, the basic requirement is reasonable—passing of information between the appointing authority and the Chief  Justices— Ch. Abdul Latif V. Azad Govt. & 6 others 2020 SCR 121 (G)
  647. —Held: the principle and opinion expressed by the Supreme Court in the later judgment has to be followed. Muhammad Hanif vs Muhammad Sadiq & others 2018 SCR 844 (B) AIR 1986 Gujrat 81, AIR 1980 Bombay 341, AIR 1980 Karnataka 92, AIR 1981 Allahabad 300, 2007 CLC 1192, 1997 SCMR 1626, 2011 CLC 377 and 2003 MLD 22 ref
  648. —دفعات 46،45، 44(3) (4) — اختیار سماعت و حدود عدالت العالیہ—سب سے اہم بنیادی نقطہ اختیار سماعت عدالت العالیہ نسبت صدور حکم زیر نزاع ہے ۔یہ حکم کسی عرضی رٹ، اپیل، نگرانی، نظرثانی یا قانون میں دیئے گئے کسی اختیار سماعت میں جاری نہ کیا گیا ہے۔ آزادجموں و کشمیر کے تمام اداروں کا دائرہ اختیار ایکٹ 1974ءکے تحت تعین شدہ ہے ۔آزاد کشمیر میں تشکیل شدہ عدالتوں کو وہ اختیار حاصل ہو گا جو انہیں قانون نے دیا ہے اور کسی بھی عدالت کو ایسا اختیار حاصل نہ ہو گا جو کہ آئین یا دیگر قانون کے تحت نہ دیا گیا ہو۔آئین کی اس دفعہ کی مزید تعبیر و تشریح دفعہ 44سے ہوتی ہے جس کے تحت عدالت العالیہ کو مختلف قسم کی رٹ ہا کی سماعت کا بنیادی اختیار دیا گیا ہے۔ اسی طرح دفعہ 45 کے تحت عدالت العالیہ کو کسی بھی شخص کو توہین عدالت کی بناء پر سزا دینے کا اختیار حاصل ہے۔ دیگر قوانین نافذ العمل کے مطابق عدالت العالیہ کو دیوانی عدالت کی مانند دیوانی مقدمات کی سماعت، اپیل، نگرانی، نظرثانی، و ریفرنس کا اختیار حاصل ہےاور اس اختیار سماعت کی نسبت Khawaja Azam Rasool vs Raja Sajjad Ahmed Khan Advocate & others 35 قانون و قواعد میں واضح حدود و طریقہ کار درج ہے۔ (ب)
  649. قراردیا گیا کہ : عدالت العالیہ کے رو برو کوئی عرضی رٹ، اپیل،نظرثانی یا نگرانی وغیرہ جو عدالت العالیہ کے دائرہ اختیار میں آتی ہو زیر سماعت نہ تھی بلکہ محض ایک درخواست توسیع میعاد زیر کار تھی ۔نوعیت درخواست کے مطابق عدالت پر لازم تھا کہ اگر حالات واقعات کے مطابق درخواست قابل پذیرائی تھی تو اُ سے منظور کیا جاتا یا بصورت دیگر مسترد کیا جاتا۔ اس کے علاوہ کوئی تیسرا طریقہ کار اپنانا قانون اور مسلمہ عدالتی طرزعمل کے بالکل نقیض ہے—- قرار دیا گیا کہ: اس درخواست کو نہ تو مسترد کیا گیا اور نہ ہی منظور بلکہ غیر ضروری طور پر اسے 27مئی 2017ء سےزیر کار رکھا گیا۔ اس اعتبار سے اپیلانٹان کے موقف کہ اس طرح کی کارروائی قانون و عدالتی اختیار کے بے جا استعمال کے ذمرہ میں آتی ہےکو تقویت ملتی ہے۔۔۔۔ مزید قرار دیا گیا کہ:عدالت العالیہ نے جس طرح درخواست پر کارروائی جاری رکھی یہ عدالتی دائرہ اختیار میں نہ آتی ہے اور اسے زیادہ سے زیادہ انتظامی کارروائی کا نام دیا جا سکتا  Khawaja Azam Rasool vs Raja Sajjad Ahmed Khan Advocate & others 35  ہے۔(پ)
  650. —-دفعہ 42۔الف ۔۔۔ غیر معمولی اختیار سماعت عدالت العظمیٰ ۔۔۔ کوئی بھی عدالت قانون کی وضع شدہ حدود سے تجاوز کر کے اختیارات کا استعمال کرتے ہوئے حکم صادر نہیں کر سکتی ماسوائے عدالت العظمیٰ کے جسے دفعہ 42۔الف کے تحت نظام  انصاف کی حتمی عدالت  ہونے کی بنا ء پر یہ اختیار حاصل ہے کہ وہ نوعیت مقدمہ کے مطابق قواعد و ضوابط کی قدغن سے آزاد  ہو کر حتمی انصاف کی غرض سے کوئی بھی ہدایت، حکم یا ڈگرٰی جاری کر سکتی Khawaja Azam Rasool vs Raja Sajjad Ahmed Khan Advocate & others 35 ہے۔(ت)    
  651. ۔۔۔۔ آرٹیکل 42(12) و 42۔بی ۔۔۔ حکم استعجازت اپیل ۔۔۔۔ نظائری حثیت۔۔۔۔ قرار دیا گیا کہ اس امر میں کوئی دوسری رائے نہ ہے کہ استعجازت اپیل کی منظوری اور رد کرنے کا حکم آئینی طور پر کوئی وضع شدہ قانونی قابل اتباع اصول نہ ہوتا ہے بلکہ سرسری جائزہ پر مشتمل ہوتا ہے –اس طرح اس حکم کو آئینی حتمی نافذانہ حثیت  حاصل نہ ہوتی      Azad Jammu & Kashmir Public Service Commission v. Mazhar Ahmed & others 2018 SCR 948 ہے۔(ذ)          
  652. constitution,  if  they  are  not  similarly  placed  other  employees. Azad Govt. & another vs Saddiq Hussain Wani & others 2018 SCR 830 (A)
  653. —آرٹیکل) 9( )4 (4—حق اظہار رائے—سماجی ذریعہ ابلاغ—حدود و قیود—قائم کردہ کمیٹی کی سماجی ذریعہ ابلاغ حدود و قیود کی نسبت سفارشات ا ور عملدرآمد کے لئے عدالتی ہدایات—  تمام مہذب معاشروں میں تضحیک آمیز  ،فتنہ انگیز  ،مبنی بر نفرت و ہتک آمیز مواد کی اشاعت قابل  مواخذہہے ۔قرآن و سنت میں بھی واضح احکامات الہیٰ ا ور احادیث موجود ہیں حتیٰ کہ سرگوشی بھی منع ہے۔ بہتا  نتراشی  ،جھوٹ ا ور ہتک آمیز مواد کی تشہیر کی اجازت تو کسی بھی مہذب معاشرہ میں نہ ہے ۔آئین  کے آرٹیکل)  9 (4 میں حق اظہار رائے کی حدود و قیود متعین ہیں — ا ن حدود کے علاو ہ قانون سازی  کے ذریعے معقول پابندیاں عائد کی جاسکتی ہیں ۔قانون نافذ کرنے والے ادا رہ کی جانب سے پیش کرد ہ سفارشا ت (i)ایسے تمام فیس بکIDs  ا ور پیجز جو اعلیٰ عدلیہ کی تضحیک ا ور توہین میں ملوث پائے گئے ہیں کی فوری  بند ش کے لئے (PTA)  کو تحریک ۔FIA) (ii) ) ذیلی شعبہ(NRC)  کے ساتھ (MOU) کا دستخط ہو  نا۔(iii)  سوشل میڈیا کے با مقصد استعمال کے لئے قانون سازی ، سائبر کرائم ایکٹ کا نفاذ ا و ر (iv)آزاد  کشمیر پولیس میں مخصوصUnit/Cell   جو سوشل میڈیا کو مانیٹر کر سکے کے قیام کی توثیق کرتے ہوئے تما م متعلقین کو فو ری طور پرعملی جامہ پہنانے کی ہدایت کی گئی۔ ) صفحہ 17 ( پ Robkar Adalat  v. Sardar Khalid Ibrahim Khan 2019 SCR 17  
  654.                    —آرٹیکل 30۔الف— قانون ساز اسمبلی میں ججز کے کردا  ر کو زیر بحث لانے کی ممانعت-
  655. –آئینی حدود و قیود—مقننہ ا ور عدلیہ کی ذمہ دا ریاں— بلاشبہ قانون ساز ادا رے کو مطابق دستور بڑ  یاہمیت حاصل ہے کیونکہ اس ادا رے نے ریاست / معاشرے میں لوگوں کی امنگوں  ، خواہشات ا و  رضروریات کے مطابق ایک منظم معاشرہ تشکیل دینے ا ور مستقبل کی راہوں کا تعین کرنا ہوتا ہے—  ریاست کے اندر آئینی حدود کے مطابق ہر ادا رہ اہم ہے ا ور
  656. آئینی دائرہ کار کے مطابق اُُسے اپنی ذمہ دا ریا ں نبھانے کا پورا استحقاق ا ور آزاد ی حاصل ہے— آئینی حدود کا تعین قانون ساز ادا رے یعنی اسمبلی کرتی ہے ا ور جہاں ا ن حدود کو توڑنے کی کوشش کی جائے یا توڑی جائیں تو ا ن حدود کو بحال کرنے ا ور قائم کرنے کی ذمہ دا ری عدلیہ پر عائد ہوتی ہے— دنیا کی تمام مہذب ریاستوں کے دساتیر کے مطابق قانون ساز ا سمبلی / پارلیمنٹ میں قوانین، نظام فراہمی انصاف ا ور اس سے متعلق معاملات کو زیر بحث لائے جانے پر کو ئی قدغن نہیں تاہم اس بحث میں جج عدالت العظمیٰ یا عدالت العالیہ کے بطور جج فرائض کی انجام دہی کے متعلق طر زِعمل کو زیر بحث نہیں لایا جاسکتا —اسمبلی / پارلیمنٹ میں جج کے کردا  رکو زیر بحث لانے کی قدغن عا  ئدہے ، یہ قدغن اُُس آئین کے مطابق عائد کی ہے ج کے تحت ادا رے بشمول اسمبلی معرض وجود میں آ ئے ہیں ا ور سارے ادا روں پر لازم ہے کہ و ہ آئین کی متعینہ حدود کی پاسدا ری کریں —قرا ر دیا گیا کہ آزاد جموں و کشمیر عبوری آئین 1974 کے آرٹیکل 30 ۔الف کے تحت اسمبلی میں ججز کے کردا ر کو زیر بحث  نہیں لایا جا سکتا ا ور آئین کے اس آرٹیکل کی خلاف ورزی قابل مواخذہ قرا رپاسکتی ہے۔ )صفحہ 17( الف Robkar Adalat  v. Sardar Khalid Ibrahim Khan 2019 SCR 17  
  657. —آرٹیکل 45—آرٹیکل)  9 (4—قانون توہین عدالت مجریہ 1993—قواعد کار عدالت عظمیٰ 1978—حکمXLVII  قاعدہ 1—آئین اسلامی جمہوریہ پاکستان ،1973—آر ٹیکل 19—آرٹیکل 204—قانون توہین عدالت—بنیادی انسانی حقوق کا تحفظ —آزادی اظہار رائے-
  658.                –حدود و قیود—توہین عدالت کا ا ز خود نوٹس لینے کا عدلتی اختیار—قانون توہین عدالت –شرعی نقظ ہنظر سےتعبیر و تشریح— عدلیہ کی نوعیت ذمہ دا ری کے پیش نظر آئینی و ذیلی قانون سازی کے تحت تو  ہینعدالت کا تصور دیا — تمام دساتیر میں نہ صرف بنیادی آئینی حقوق کا تحفظ کیا گیا بلکہ ا ن حقوق کا موثر اطلاق و نفاذ آئین کی بنیادی روح و منشاء ہے— عدلیہ کے وجود کا بڑ مقصد ہی آئین میں دیے گئے بنیادی حقوق  کا تحفظ ا ور ا ن کے عملی نفاذ کو یقینی بنانا  ہے— اظہارِ رائے کی آزادی کے حق میں دیگر شرائط کے علاو ہ تو ہینِ عدالت کی  قدغن بھی شامل ہے— آئین کی منشاء و روح کے مطابق توہین عدالت کی آئینی دفعات ا ور قوانین پر
  659. عملدرآمد نظام فر اہمی انصاف کو یقینی بنانے کے لیے ناگزیر ہے—عدالتوں کو تحفظ نہ صرف نا  فذدساتیر کے مطابق بلکہ قرآن و سنت ا ور شرعی نقطہ نظر سے بھی حاصل ہے— آئینی دفعات ا و ر قوا  نیننافذالوقت عدالت العظمیٰ و عدالت العالیہ کو توہین عدالت کے معاملہ میں کُلی اختیار حاصل ہے —ا  سنسبت یہ عدالتیں کسی دائری در خواست کی محتاج نہ ہیں بلکہ ا ز خود کارروائی کرنے کا کُلی اختیار رکھتی ہیں—آرٹیکل 45 کے تحت عدا لت عظمیٰ و عدالت العالیہ کو توہین عدالت کے معاملہ میں سزا دینے کا اختیار حا صل ہے جبکہ قواعد کار عدالت العظمیٰٰ مجریہ 1978 کے حکمXLVII ،قاعدہ 1 میں عدالت کو ا ز خود کارروائی  کا
  660. اختیار حاصل ہے۔ )صفحہ 17 ( پ Robkar Adalat  v. Sardar Khalid Ibrahim Khan 2019 SCR 17   
  661.   —-آزاد  جموں  وکشمیر  عبوری  آئین،    1974   ء
  662. آرٹیکل I(d),3-3  فور ی فراہمی انصا ف۔۔۔آئینی ریاست میں نظا م فراہمی انصا ف  کو بنیاد ی ا  ہمیتحاصل ہے۔۔۔ کم خرچ او ر فور ی داد رسی کے مو ثر طریقہ کار کا ہونا ناگزیر ہے۔۔۔آرٹیکل 3 کے مطابق اسلام ریا  ستمذ ہ ہے۔عدلیہ کی ذ مہ دا ر ی ہے کہ وہ دیگر آئینی تقاضوں کے علاوہ اساسی اصولI(d)-3 کے تحت  کم خرچ او ر فور  ی
  663. فراہمی انصا             ف  کو         یقینی بنائے۔۔۔ Umar Hayat v. Asia Bibi & others  2019 SCR 427
  664.  ب
  665. آرٹیکلA&B -3—آرٹیکل C-3 تاI -3 ۔۔۔آئینی اساسی اصول۔۔۔عملدرآمدہاء۔۔۔ ہر ریاست ادارے اور شخص جو ریاست اداروں کی طر ف سے ذمہ داریاں او ر فرائض  نبھا رہا ہے‘  پر لاز م  ہے  کہ  وہ  آرٹیکل  C-3 تاI -3 کے مطا بق اپنی ذمہ داریاں او ر فرائض نبھائے او ر ان  پر عملدرآمد کرے۔۔۔ضرور ت پڑے تو عدلیہ ان  اصولوں  پر عملدرآمد کے لئے ہدایات جار  یکرسکتی ہے- Noman Ajmal  v. Moheen Naseem & others 2019 SCR 724
  666.   ت
  667. ۔A(3)-3۔۔۔آئینی اساسی اصول  کی اہمیت  کو اجاگر کرنے  کے لئے صدر ریاست  پر ذ  مہدار ی عائد کی گئی ہے کہ وہ آئینی اساسی اصولوں  پر عملدرآمد کے حوالہ سے  ہر سال ایک رپور ٹ مرتب کرکے روبرو اسمبلی پیش کرے – Umar Hayat v. Asia Bibi & others  2019 SCR 427
  668.    ت
  669. ۔۔۔آئینی سیاسی اصول او ر بنیاد ی آئینی حقوق لاز م و ملزو م۔۔۔بنیاد ی آئینی حقوق کے تحفظ کے لئے آئینی اساسی اصولوں  کو مدنظر رکھا جانا بھی لاز م ہے۔( صفحہ Umar Hayat v. Asia Bibi & others  2019 SCR 427
  670.   ت
  671.                    ۔۔۔آرٹیکل — A-42 عدالت العظمیٰ  کو نظام فراہمی انصا   ف کے لئے وسیع اختیارات حاصل ہیں تمام
  672. انتظامی او  رعدالتی حکام عدالت العظمی  کٰے آئینی اختیارات  پر عملدرآمد کے پابند ہیں۔(  Raja Muhammad Nazam Khan & others        v. Sessions Judge & others 2019 SCR 241
  673. ) ت
  674.  آرٹیکل 4)4(4۔۔۔تحفظ بخلا ف اطلاق سزا مؤ ث بماضی۔۔۔بنیاد ی آئینی حق۔۔۔آئین میں کسی بھی شخ   ک سزا دینے کے لئے قدغن۔۔۔اگر کئی  فع یا سہو ا رتکاب قابل سزا نہ تھا تو اسے مابعد قانون کے تحت قابل سزا قرا ر نہ دیا جا سکت ہے۔۔۔اسی طرح ا رتکاب جرم کے وقت قانو ن نے جو سز ا مقرر کر رکھی  تھ اسے زیادہ  یا مختلف نوعیت  ک سز  انہیں د ی جاسکتی۔)صفحہ Masood Ahmed v. Riasat & 6 others 2020 SCR 146
  675.  ( ا ل
  676. ۔۔۔آرٹیکل 4)4(4۔۔۔مجموعہ تعزیرات۔۔۔دفعہ53۔۔۔سزائے دیت۔۔۔عذر کے مجرم  ک د ی گئ  دیت ک سزا بنیاد ی آئینی حق ک خلا ف ورز ی ہے۔۔۔قرا ر دیا گیا کہ دفعہ 53 میں قصاص کے بعد دیت ک سزا کا تزکر  ہہے۔تاریخ ا رتکاب جرم سا ل 2005 سے پہلے دیت ک سزا نافذالعمل ہے۔۔۔لہذا سزائے دیت آئینی بنیاد ی حق سے متصاد م ہے۔۔۔)صفحہ Masood Ahmed v. Riasat & 6 others 2020 SCR 146
  677. (ال
  678.  ۔۔۔آرٹیکل 4)4(4۔۔۔مجموعہ تعزیرات۔۔۔دفعات 323۔۔۔سزائے د یت و  تعی مقدا ر۔۔۔سزا ئے دیت ک مقدا ر کے  تعی کا معاملہ مقدمہ کے حالات و و اقعات ا و ر ملزم ا و ر ورثاء کے مالی حالات کے تناظر میں عدالت ک صوابدید  پ ہے۔۔۔ا س لئے آئین میں مندرج بنیاد ی  حق کسی طور مجروح نہ ہوتا ہے۔۔۔عدالت جو سز ا  تعی کرے وہ  قانوناً دفعہ 323 ک روح سے مطابق ا رتکاب جرم کے وقت سے ہی نافذ شدہ تصور ہو گی۔ ۔۔قرا ر دیا گیا کہ دفعہ 323 کے تحت سزا دیت ک مقدا  رو مالیت کا بوقت فیصل   تعی آرٹیکل 4)4(4 سے متصاد م نہ ہے۔۔۔)صفحات Masood Ahmed v. Riasat & 6 others 2020 SCR 146  ( ج
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