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Petitioner: Sardar MUHAMMAD IBRAHIM KHAN VS Respondent: AZAD JAMMU AND KASHMIR
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Khurshid Khan, Sardar Said Muhammad Khan Title:Sardar MUHAMMAD IBRAHIM KHAN vs AZAD JAMMU AND KASHMIR
JUDGMENT
Reported As: PLD 1990 Supreme Court (AJ&K) 23 Result: Order accordingly Judgment JUDGMENT ' RAJA MUHAMMAD KHURSHID KHAN, C.J.--Sardar Muhammad Ibrahim Khan, the appellant herein, was sworn in as the President of Azad Jammu and Kashmir for a period of five years on 5th of June, 1975, which period under the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be called the Constitution Act), was to 'expire on 5th of June, 1980. The Legislative Assembly elected was also to remain in office for five years. At that time the Peoples Party Government held the power in Pakistan. 2. In consequence of Pakistan National Alliance's agitation following the general elections in March, 1977, the Army dismissed the Government of Mr. Zulfiqar Ali Bhutto and took over the power in Pakistan. In Azad Kashmir, at that time, Peoples Party occupied the Government. As Martial Law did cast its shadows in Azad Kashmir too, an agreement was arrived at on 27th of July, 1977, between the major political parties' Presidents, for the dissolution of Azad Kashmir Assembly and the Azad Jammu and Kashmir Council. The agreement reads as under: "(1) The elections to the Legislative Assembly of Azad Jammu and Kashmir shall be held in October, 1977 within 10 days after the elections of Pakistan, and shall be conducted under the rules/conditions similar to those in Pakistan. (2) the existing Azad Jammu and Kashmir Council and the Legislative Assembly of Azad Jammu and Kashmir shall be dissolved. (3) The present President of Azad Jammu and Kashmir, Sardar Muhammad Ibrahim Khan, shall continue as interim President provided he does not seek election for any office. In case he does, he
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shall resign and the powers of the President shall devolve on the Chief Executive mentioned in para 5. (4) The Prime Minister, the Ministers, the Advisors and the Speaker of the Legislative Assembly of Azad Jammu and Kashmir and the Advisors of Azad Jammu and Kashmir Council shall cease to hold office. (5) Major-General (Retired) Abdul Rehman shall be appointed as Chief Executive of Azad Jammu and Kashmir and shall exercise all the powers conferred by the Interim Constitution Act, 1974 on the Prime Minister. (6) The executive authority of the Council shall be exercised by the Chief Executive of the Government of Pakistan. (7) The new Assembly and Government shall be inducted within a week after the announcement of results of elections. (8) Justice Muhammad Gul shall be the Chief Election Commissioner who will conduct elections on the basis of existing electoral rolls, after updating them to the extent possible under the circumstnaces. (9) The signatory parties underake to get the interim Constitution and other relevant laws amended through the prescribed proceduce by 6th August, 1977, to incorporate arrangements outlined in paras 1-8 and matters connected therewith." 3. In the agreement, the appointment of Chief Executive was also agreed upon. The Chief Martial Law Administrator of the time, General Muhammad Zia-ul-Haq, countersigned the agreement as Chief of the Staff. Consequently, Maj.-Gen. (Retd.) Abdul Rehman took oath of office as Chief Executive of Azad Kashmir on 11th of November, 1977. Later on Brig. Muhammad Hayat Khan (now Maj.-Gen. Retired) was appointed as Chief Executive in place of Maj. Gen.(Retd.) Abdul Rehman. 4. On 16th October, 1978, General Muhammad Zia-ul-Haq, the President of Pakistan and Chief Martial Law Administrator, who also exercised the powers of the Prime Minister of Pakistan in which capacity he was the Chairman of the Azad Jammu and Kashmir Council, issued an order (proclamation) removing Sardar Muhammad Ibrahim Khan from the office of the President of Azad Kashmir. Brig. Muhammad Hayat Khan, Chief Executive of the time, was appointed in his place. He was also required to continue as Chief Executive of Azad Kashmir. 5. The proclamation was issued under section 56 of the Constitution Act which refers to the responsibilities of the Government of Pakistan in relation to Azad Jammu and Kashmir under the UNCIP Resolutions. Section 56 of the Constitution Act reads as under:-- "Nothing in this Act shall derogate from the responsibilities of the Government of Pakistan in relation to the matters specified in subsection (3) of section 31 or prevent the Government of Pakistan from taking such action as it may consider necessary or expedient for the effective discharge of those responsibilities." ' The proclamation also speaks of all other enabling powers that Pakistan Government has in relation to Azad Kashmir. 6. Sardar Muhammad Ibrahim Khan, under section 44 of the Constitution Act, moved a writ petition in the High Court challenging the constitutional validity of the said proclamation, published on 31st of October, 1978, and contended that in law he still continued to be the President of Azad Jammu and Kashmir. On the above ground, he prayed that the proclamation be declared null and void as, in his view, it was ultra vires of the Constitution Act. He also prayed for writ to be issued against Brig. Muhammad Hayat Khan to restrain him from performing the functions of the President and so on. 7. It may be noted here that in the writ petition General Muhammad Ziaul-Haq, Chairman of the Azad Jammu and Kashmir Council (hereinafter to be called as the Council) and Brig. Muhammad Hayat Khan, Chief Executive/ President of Azad Jammu and Kashmir, were impleaded by the appellant as respondents, but while admitting the petition for regular hearing, the Full Bench of the
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High Court ordered the deletion of the names of General Muhammad Ziaul-Haq and Brig. Muhammad Hayat Khan from the writ petition and Azad Kashmir Government was ordered to be impleaded in their place. It was also held that this would neither affect the merits of the case nor the relief sought by the appellant. On the basis of the above finding, a notice was issued to the Azad Kashmir Government to file written statement etc. In the matter which was accordingly done. The Government, it may be observed, contested the matter upto the Supreme Court. 8. It would appear that the appellant, inter alia, claimed that he entered upon the office of President on June 5, 1975, after having been elected to the said office in the general elections held in Azad Jammu and Kashmir in the month of May, 1975, for five years and the term of his office was still to expire, when he was illegally and unconstitutionally removed from the office of President. His removal, it was averred, was the outcome of a reference made to the Supreme Court of Azad Jammu and Kashmir under the provisions of section 46-A of the Constitution Act for its opinion about the legality of the appointment of Brig. Muhammad Hayat Khan as Chief Executive of Azad Kashmir by General Zia-ulHaq, the President of Pakistan. In this context, the appellant's case is and was that he was required by Gen. Zia-ul-Haq to withdraw the said reference but he declined to do so and thereafter General Zia-ul-Haq, to wreak vengeance, hatched a conspiracy to remove him in execution of which the impugned proclamation was made on 16-10-1978 and published by the Law Secretary of the Government of Azad Kashmir on 31-10-1978. According to the appellant, the proclamation was tainted with mala fide intention. Even otherwise, it was claimed, the proclamation was ultra vires of the Constitution Act inasmuch as the Chairman of the Council had no power or authority to issue any such proclamation under any of the provisions of the Constitution Act including the one under which it was issued. 9. This case, carrying important constitutional issues, had to see a chequered history spreading over eleven years which need not be repeated here. Suffice it to say that it does not reflect a happy reading for the judiciary; justice delayed is justice denied, is the time honoured golden principle and judiciary should always honour it in letter and spirit. 10. Finally, the case was decided by way of impugned judgment passed on 6-4-1989. The matter was concluded by a Division Bench of the High Court consisting of Mr. Justice Sardar Muhammad Ashraf Khan, Acting Chief Justice and Mr. Justice Sher Zaman Chaudhry, the puisne Judge. The learned Judges differed in their decisions. Mr. Justice Sher Zaman Chaudhry held that since the Council, who had passed the order, was not impleaded as a party, the writ petition was incompetent. On the other hand, Mr. Justice Muhammad Ashraf Khan found that since the order of removal of Sardar Muhammad Ibrahim Khan had been issued by the Government of Azad Jammu and Kashmir and that since the Government had continuously been contesting the writ petition and since the Full Bench of the High Court had deleted the name of General Zia-ul-Haq, Chairman of the Council, vide order dated 13-12-1978 which order had attained finality, there was, therefore, no need or occasion for the Council to be impleaded as a party. This omission, thus, was not fatal to the entertainment of the writ petition by the High Court. The matter was concluded by Mr. Justice Sardar Ashraf in holding that the impugned proclamation made by the Chairman of the Council on 16-10-1978 and published on 31-10-1978 by the Law Secretary of the Azad Kashmir Government for general information by virtue of which the appellant was relieved of his responsibilities of the office of President and Major-General (Retd.) Muhammad Hayat Khan was appointed in his place as President, being ultra vires of the Constitution Act, was unlawful and of no legal effect and Sardar Muhammad Ibrahim Khan continued as President of Azad Kashmir for the period stipulated under the Constitution Act. This appeal, by leave, seeks reversal of both the orders of the learned Judges of the High Court. 11. It may be observed that the learned Judge, Mr. Justice Sardar Ashraf, however, in para 25 of the judgment, despite the above finding, observed that he is fully conscious of the fact that the relief
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allowed is not of any substantial benefit and value to the appellant in view of the complete change having taken place after his removal. He, thus, opined that relief is granted in the interest of justice and broader public interest with a view to providing the appellant at least the satisfaction of his legal title making the legal position clear with regard to the constitutional points involved. 12. Besides other objections to be referred at the proper place, the appellant has serious objections to the above observation (in para 25) in the judgment of the High Court which, according to him, is not only illegal but is also uncalled for and amounts to adding something in law which is not permissible. The observation, the appellant's grievance is, deprives him to have the fruit flowing out of the relief granted to him. According to the appellant, the above observation makes the relief ineffective which can never be the intent and purpose of law. 13. It would, thus, appear that the learned Judges differed mainly with regard to maintainability of the writ petition; Mr. Justice Sardar Ashraf is of the view that the writ petition is tenable and the proclamation is also unconstitutional while Mr. Justice Sher Zaman Chaudhry opines that the writ petition, in the absence of Azad Jammu and Kashimr Council, is not competent. Mr. Justice Sher Zaman, however, declined to decide the writ petition on merits. 14. It has been argued by the appellant:-- (1) that Mr. Justice Sher Zaman Chaudhry erroneously held that the writ petition is not competent due to the absence of the Azad Jammu and Kashimr Council as a party; (ii) that if in the opinion of the learned Judge the presence of Azad Jammu and Kashmir Council was essential as a respondent, the appellant ought to have been ordered to implead the Council and in the event the appellant failed to do so, then only writ petition could be dismissed. Since this has not been done, the order passed by Mr. Justice Sher Zaman is not tenable. (iii) that since the Full Bench in the High Court had already opined vide order dated 13-12-1978 that the Azad Kashmir Government for all practical purposes is the proper party to meet the claim of the appellant, the learned Single Judge Mr. Justice Sher Zaman was incompetent to undo the order as the order passed by the Full Bench cannot be annulled by a Single Bench or Division Bench. (iv) that the judgment of Mr. Justice Sardar Muhammad Ashraf Khan is correct to the extent that the proclamation was unconstitutional but it needs to be recalled when it decides that no relief can be granted to the appellant; (v) that under Order VII rule 7 read with section 151, Code of Civil Procedure, the emoluments etc. To the appellant to the date the new President entered into the office on October 31, 1985, were to be awarded to the appellant to avoid all further litigation which had already consumed considerable time. The High Court was competent to grant such relief as it was in consonance to averments made in the writ petition, but omission of the High Court to allow emoluments etc. To the appellant is an erroneous approach to the controversy; (vi) that since at the time the writ petition was moved the tenure of appellant as President still remained unexpired, reinstatement in recalling the unconstitutional proclamation could only be claimed; (vii) that at the most the High Court was required to declare the proclamation as unconstitutional, but the High Court transgressed its powers in observing that no relief, after declaring the proclamation to be unconstitutional, can be granted to the appellant. The consequences should have been allowed to flow from the relief granted; (viii)that since the Supreme Court is entitled to grant all those reliefs which can legally be granted by the High Court, the appellant may be allowed emoluments, privileges etc. To the date the new President was sworn in as the President of Azad Kashmir; (ix) In elaboration Sardar Muhammad Ibrahim Khan has contended that the Supreme Court, in exercise of its inherent powers, should give him the relief in the shape of emoluments etc. Upto 1985
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when Sardar Muhammad Abdul Qayyum Khan, the present President, was sworn in. In this respect he has referred us to section 5(5) of the Constitution Act which reads: "Subject to the provisions of this Act, the President shall hold office for a period of five years from the date on which he enters upon his office and shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office." 15. As against this, Mr. Manzoor Hussain Gillani, the learned Advocate-General, has argued: (i) that under the Courts and Laws Code Act, 1949, (hereinafter to be called as Courts and Laws Code Act) read with Azad Jammu and Kashmir High Court Procedure Rules, 1984 (hereinafter to be referred as High Court Rules), the appeal before this Court is not competent inasmuch as under the said Code and Rules, where there is a difference of opinion between two learned Judges of the High Court (as happened in this case), the matter was necessarily required to be referred by the Chief Justice to a third Judge for his decision and the decision of the third Judge, owning the view point of one of the Judges, would have formed the judgment of the Court; since this has not been done, in his view, at present we have no judgment but only "opinions" of two Judges which cannot be equated with judgment or order and since the "opinions" do not admit of an appeal, the appeal, in his view, is incompetent. In support of his argument, he has referred to an amendment made in section 24(1) of the Courts and Laws Code Act in the year 1975 which is to the effect that in the event of difference of opinion, "the case shall be referred to a third Judge and his opinion shall prevail". He has also relied on identical provisions of sub-rules (2) and (3) of Rule 21 of the High Court Rules. (ii) that without impleading the Council whose proclamation was sought to be avoided, the writ petition before the High Court was incompetent. In his view, the deletion of the names of General Zia-ul-Haq and Major-General (Retd.) Muhammad Hayat Khan by the Full Bench of the High Court can in no way make the writ petition competent, if it is otherwise incompetent for want of proper parties; (iii) He however conceded that the Chairman of the Council was incompetent to remove the appellant and his act in doing so being unconstitutional and illegal has and had no legal backing and is to be ignored provided there is a valid appeal before us; (iv) The learned Advocate General, however, agreed that the Supreme Court in exercise, of its inherent powers is competent to pass an order which can be passed by the High Court, if the matter can be considered to be pending in appeal before this Court and not otherwise. In his view since there is no appeal, the question of exercise of inherent powers does not arise at all. 16. In support of his objections, listed under Nos. (i) and (ii) above, he has cited Distributors (Bardoa) Pvt. Ltd. v. Union of India (1986 PSC 143, In re: Reference No, 1 of 1977 by President of Azad J&K PLD 1978 SC (AJK) 34 and Ayr's Manual of Law, Terms and Phrases, 7th Edition, 1972, p. 648. 17. We have looked into the above case-law. The case-law cited does not cover the controversial points involved in the present case. It will thus be a futile exercise to have a critical survey of the above cases. 18. As said earlier, the learned Advocate-General concedes that the Chairman of the Council was not competent to remove the President in his capacity as Chairman. He even wanted us to hold further that the Government of Pakistan is also not competent to remove the President or the Prime Minister under any of the provisions of the Constitution Act and especially under section 56 of the Constitution Act. In his written arguments too, the learned Advocate-General showed complete agreement with the appellant that the Chairman of the Council, under no provisions of the Constitution Act, is clothed with the authority to remove the Prime Minister or the President of Azad Kashmir. In the circumstances, the removal of the appellant, under the aforesaid proclamation which was published in Official Gazette on 31-10-1978, in his estimation, is violative of the provisions
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of the Constitution Act and the appellant, but for this proclamation, was entitled to occupy the office of President till 5th of June, 1980, when his tenure as President was to terminate. The learned Advocate-General, however, does not agree that the appellant, as contended, was legally entitled to continue as President upto 31st October, 1985, when the present President, Sardar Muhammad Abdul Qayyum Khan, was sworn in as President. 19. Arguing the matter further, the learned Advocate-General submitted that despite the above position of law, the following factors create hurdle in granting the relief agreed upon and prayed for:-- There is no order, judgment or decree of the High Court against which a valid appeal lay before the Supreme Court. The views expressed by the learned Judges comprising the Bench in the High Court, he contended, are only expressions of their "opinions" over the subject-matter. The "opinions", being divided, they cannot be termed as judgments, orders or decrees of the Court, appealable; and (ii) The opinions of the learned Judges being divided, the case was to be referred to one or more of the other Judges designated for the purpose by the Chief Justice. On hearing the case by the Judge or Judges to whom it was so referred, the majority opinion would have formed a valid judgment and if the difference still existed, in the event it was referred to two Judges who also differed in their views, and two Judges originally hearing the case also differed, the opinion of the senior most Judge out of the four Judges would have been considered to be the order of the Court. ' Elaborating his submissions on the subject, the learned Advocate-General, in the first instance, has referred to sub-rules (2) and (3) of Rule 21 of the High Court Rules, which read as under:- "(1 ) ...................................................... (2) If the Judges composing the Bench are equally divided on any point they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other judges designated for the purpose by the Chief Justice and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the case including those who first heard it. (3) If there is no such majority, then the decision shall be in accordance with the decision of the Senior Judge except in the case of an appeal from a decree where such decree shall be confirmed." ' Additionally the learned Advocate-General also relied heavily on section 24(1) of the Courts and Laws Code Act. It says:- "Any function which is hereby directed to be performed by the High Court, may be performed by any Judge or by any Division Court appointed or constituted for the purpose by the Chief Justice. In case of a Division Court, if the Judges are divided in opinion on any point, the opinion of the majority, but if the Judges be equally divided then the case shall be referred to a Third Judge and his opinion shall prevail." ' On the basis of the above provisions of the High Court Rules and Courts and Laws Code Act, the learned Advocate-General sought to contend that it was mandatory for the learned Judges to refer the matter to a third Judge, which has not been done. Unless the point of difference is not referred to and resolved by the third Judge, the orders made by the learned Judges, in his view, are to be considered only as "opinions" of the Judges and not a decision of the Court--appealable. 20. On the above premises of reasoning, the learned Advocate-General contended that the "opinion" of a Judge or Judges cannot validly form the subject-matter of an appeal in this Court. He, thus, seeks dismissal of appeal on this short ground. He also submitted that non-availability of the third Judge at the time the "opinions" were formed by the two learned Judges of the High Court, would make no difference as the learned Chief Justice could move the Government or President for appointment of a Judge for meeting the requirements of law and rules. In his view, the matter
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should have been kept pending till such appointment. In support of his argument, he has referred to a case titled Sardar Khan v. Sh. Attaullah 1989 CLC 1845 wherein it has been held:-- "It follows from the above-cited case-law that if the vacancy of a Judge of the Superior Court falls vacant for one reason or the other and thus the number of Judges falls short of the minimum number prescribed under law, the constitution of the High Court would not be adversely affected and the remaining Judges or Judge, as the case may be, would be competent to perform their functions under law." 21. The above case, we believe, does not decide or cover the controversial point before us. In this case constitution of the High Court was only under discussion and it was decided that two Judges of the High Court would be considered to be a valid High Court within the meaning of the words "High Court". 22. On the above premises of reasoning, the learned Advocate-General sought to argue that since there is no judgment or order of the High Court, the appeal is incompetent and liable to be dismissed. Alternatively, he submitted that assuming (but not conceding) that the "opinions" of the learned judges can be considered to be judgments or orders, the question agitated in this appeal with respect to the relief of emoluments etc., being inconsistent and alien to the case as set up in the High Court, cannot be granted in exercise of the inherent powers of this Court, as contended by the appellant. In elaboration, the learned Advocate-General submitted that since pay etc. Was neither claimed, agitated or discussed in the orders of the High Court, these issues cannot be allowed to be taken up for the first time before the Supreme Court. A party, the learned Advocate- General contended, cannot be allowed to build a new case for the first time before the Supreme Court. 23. The analysis of the above facts and the arguments advanced at the Bar would show that the parties, inter alia, are in agreement:- (i) that the proclamation issued by the Law Secretary on 31-10-1978 was ultra vires of the Azad Kashmir Constitution Act; and (ii) that the removal of Sardar Muhammad Ibrahim Khan, thus, was unconstitutional as General Zia-ul-Haq as Chairman of the Council had no authority or power to remove…
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