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Petitioner: Ch. AKHTAR HUSSAIN and 2 others VS Respondent: ELECTION COMMISSIONER OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 4 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Khawaja Muhammad Saeed, Abdul Majeed Malik, Sher Zaman Chaudhary Title:Ch. AKHTAR HUSSAIN and 2 others vs ELECTION COMMISSIONER OF AZAD
JAMMU AND KASHMIR, MUZAFFARABAD and 4 others Case No.: Writ Petitions Nos. 45 and 46 of 1990 Date of Judgment:1990-05-20 Reported As: PLD 1990 Azad J&K 61 Result: Petition accepted Judgment ORDER ' ABDUL MAJEED MALLICK, C.J.---Syed Ghulam Mujtaba Bukhari, petitioner claims to be a refugee from Tehsil Mehndar, District Poonch (Indian occupied part of the State), presently settled in village Khorakka, Tehsil Sohawa, District Jhelum. His name appears in the electoral roll of Constituency L.A. 34, Jammu and others--VI. He has filed his nomination papers to contest the elections to the aforessid seat. Sardar Sikandar Hayat Khan, respondent No,1 is also one of the candidates in the elections for the aforesaid Azad Jammu and Kashmir Legislative Assembly seat. The name of Sardar Sikandar Hayat Khan appears on the electoral roll of Municipal Ward No, 4 of Rawalpindi. The petitioner has challenged the candidature of respondent No,1 by invoking extraordinary jurisdiction of this Court. 2. It was alleged that Sardar Sikandar Hayat Khan, respondent No,1 was permanent resident of village Karela Majhan, Tehsil Nakial, where his name appeared as an elector on the electoral roll of the area. The respondent contested the elections to the Assembly and was returned as such from the Constituency L.A. 9, Kotli - II in 1970 and in 1985. He was a sitting member of the Assembly and was also elected as Prime Minister. Thus, in view of the petitioner, the respondent, for all practical purposes, was a resident of village Karela Majhan. 3. In the oncoming elections, the respondent filed his nomination papers, to contest elections to LA.34 Jammu and others--VI. An objection to his nomination was raised before the Returning Officer by one Ghulam Sabir (petitioner in other writ petition) but the same was turned down on April 11, 1990. An appeal against the order of acceptance of nomination papers of the respondent before the Chief Election Commissioner, was dismissed on April 19, 1990. The petitioner having no
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other adequate remedy, felt constrained to invoke extraordinary jurisdiction of this Court, as contemplated under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Respondent No,l and Chief Election Commissioner, respondent No,2, in their written statements repudiated the allegations made by the petitioner and alleged that the writ petition was incompetent (i) on account of acquiescence of the petitioner; (ii) that the points raised in the petition required detailed investigation, including recording of evidence; (iii) that no violation of law was involved in the case; and (iv) that the petitioner was vested with a right to agitate all the points raised in the petition, before the Election Tribunal. 4. Ch.Muhammad Akhtar and Ghulam Sabir, petitioners in the second petition, also challenged the candidature of Sardar Sikandar Hayat Khan, respondent No,5 in that petition, and alleged that the petitioners were registered as electors in the electoral roll for the Constituency L.A. 34, Jammu and others-VI. Originally, they were residents of village Gulpera, Tehsil Mirpur and presently they resided in village New Gulpera Dakhli Sanjote, Tehsil Gujar Khan. Their names appeared at Serial Nos. 1 and 2 in the electoral roll of the area. They were contesting candidates for L.A. 34, Jammu and others-- VI. 5.. Sardar Sikandar Hayat Khan was a resident of village Karela Majhan, Tehsil Nakial, where his name appeared on the electoral roll at Serial No,387. The respondent contested the previous elections of the Assembly for LA. 9, Kotli-II, being resident of that constituency. In the on-coming elections, the respondent was again a contesting candidate for LA. 9, Kotli-II. In presence of the aforesaid factual position, the respondent, in violation to the election laws, filed his nomination papers for LA. 34, Jammu and others-VI. The respondent, in exercise of his undue influence, got entry of his name at Serial No, 156 of the electoral roll of LA. 34, Jammu and others - VI. Under law, he could he enrolled as an elector in the electoral roll of the electoral area where he actually resided. As he was not a resident of the Constituency, LA. 34, Jammu and others-VI, registration of his name in the electoral roll, acceptance of his nomination papers and dismissal of appeal by the Chief Election Commissioner, were illegal, unlawful and without jurisdiction. 6. Ghulam Sabir, one of the petitioners objected to the nomination of the respondent before the Returning Officer but the objection was turned down on April 11, 1990. An appeal preferred by him before the Chief Election Commissioner was also dismissed. The petitioners having no other adequate remedy, preferred the writ petition by invoking extraordinary writ jurisdiction of this Court. 7. The Registration Officer, respondent No,4 submitted his written statement through the Registrar of the Court. Respondents No, 2 and 5 contested the petition by repudiating all the averments made therein. In the preliminary objections, it was everred that the writ petition was incompetent for : (i) failure of the petitioners to object to the enrolment of the respondent before the Registration Officer; (ii) the points raised in the petition deserve detailed investigation, including recording of evidence; (iii) no point of law was involved in the case; and (iv) the petitioners had adequate remedy in the shape of election petition. ' Respondent No, 5 reiterated his claim to contest elections to both the seats of the Assembly, viz. LA. 9, Kotli-II and L.A. 34, Jammu and others - VI. The respondent alleged that he was a resident of Satellite Town, Rawalpindi Municipal Ward No, 4, as such was not disqualified to contest the elections in dispute. 8. In written statement of the Chief Election Commissioner, it was stated that Ghulam Sabir was a brother of Akhtar Hussain. Practically, he had withdrawn from the coiflest, as such he was not an
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aggrieved person. Akhtar Hussain, petitioner failed to object to the nomination of the respondent before the Returning Officer and Chief Election Commissioner, as such, he was also not an aggrieved person. Next, it was contended that the nomination of a candidate was not open to challenge except through the election petition before the Election Tribunal. Likewise, the electoral rolls wherein the names of the petitioners and respondent No,5 appeared, became final after the notice of the elections, it could not be disturbed at this stage and that the Returning Officer and Chief Election Commissioner were incompetent to modify the electoral rolls, by excluding the name of the respondent. Thus, the orders of acceptance of nomination papers and dismissal of the appeal, were quite legal. 9. Agha Ashiq Hussain, the learned Counsel appeared on behalf of the petitioners in both the cases. Likewise, Mr. S.M. Zafar. a senior Counsel represented Sardar Sikandar Hayat Khan in both the petitions. The learned Counsel for the parties addressed common arguments in both the petitions. It is, therefore, proposed to dispose of the petitions by common order. 10. The preliminary objections raised in the written statements of the contesting respondents, were not pressed into service except that this Court may refrain from exercising its extraordinary jurisdiction at this stage by allowing the respondent (Sardar Sikandar Hayat Khan) to contest the elections as the law provided adequate remedy against an illegality, committed during the process of election, in the shape of election petition before Election Tribunal. Mr. Muhsmmad Hanif Khan, the learned Counsel for Chief Election Commissioner, in support of his contention, cited PLD 1961 SC 145, PLD 1962 (W.P.) Lahore 421, PLD 1965 (W.P.) Karachi 625, PLD 1967 SC 569, PLD 1970 Lahore 596, PLD 1971 Lahore 737, PLD 1984 Quetta 111, PLD 1985 SC (AJ&K) 85 and 1985 SCMR 729. 11. We have examined the proposition raised by the learned Counsel for the respondents. It is undenied that the law provided a remedy of election petition before the Election Tribunal as contemplated under section 64 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The Election Tribunal, initially, was competent to look into, among others, the validity of the nomination of a returned candidate and the qualifications and disqualifications of his being elected as a member as contemplated under subsection (1) (a) and (b). By an Amendment Act of 1985, the aforesaid questions were excluded from the jurisdiction of the Election Tribunal and the Election Tribunal was left with jurisdiction in the matters listed in clauses (c) and (d). 12. Besides that, this proposition was raised before the Supreme Court in an application for interim injunction by the learned Counsel for the respondent. The learned Acting Chief Justice of the Supreme Court attended the proposition at considerable length by going through the authorities cited on behalf of the respondent and arrived at the conclusion that the case-law cited by the learned Counsel was of no help as, in the situation, the High Court was not debarred from exercising its extraordinary jurisdiction in appropriate cases. 13. Mr. S.M. Zaffar, however, made a suggestion that the Court may leave the proposition unresolved to enable the Election Tribunal to decide it at appropriate time. It was argued that in case the election of the respondent was found void on account of illegality committed by him, the whole election shall be set aside and in that case, all the contesting candidates, who presently, for one or the other consideration, have already withdrawn, shall have the opportunity to contest the election. In case the respondent was deprived of contesting the election on account of the alleged disqualification for his being non-resident of the Constituency in question, the political party to which the respondent belongs, would be deprived of the seat of the Assembly. Moreover, the candidates who have already withdrawn, shall also he deprived of their statutory right to contest election to the seat of the Assembly. In reply to the aforesaid arguments, Mr. Muhammad Siddique Farooqi, who appeared as amicus curiae, explained that by allowing the respondent to contest election despite the fact that he was disqualified to do so, would amount to allow multiplicity of
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illegalities likely to be committed till the elections were held void by the Election Tribunal. It was elaboreted that in 'case the respondent was returned from the seat, he will obviously be free to vote in the election of the Speaker, the Prime Minister and the President and by the time the Election Tribunal decides the election petition, these stages will be over. He made a counter-suggestion that the chance of perpetuating the illegality by allowing a person who, in the eye of law, was disqualified to put up his candidature, would comparatively be more harmful and unjust than by disallowing him to contest the election. We, in our earnest consideration, agree with the second view, irrespective of the fact whether some harm will he caused or not as, in our estimation, once it is satisfied that a person is not qualified or is disqualfied, he cannot exercise the right to contest election. This Court, being a Court of law, has to adhere to the rules of law, irrespective of the consequences flowing, therefrom. The objection is, therefore, not sustained. 14. The substance of the points agitated by Agha Ashiq Hussain, the learned Counsel for the petitioners, is that in presence of the admitted position that Sardar Sikander Hayat Khan is resident of village Karela Majhan where his name appears on the elector roll of electoral area LA-9,, Kotli-2 and that he has also filed his nomination papers to contest the oncoming elections for the same seat and that he was a sitting Member Legislative Assembly against the said seat, obviously would suggest that entry of his name in the electoral roll for Constituency LA-34 Jammu and others-VI was in contravention of law. Moreover, keeping in view the provisions of section 13 read with section 12 of the Elections Ordinance I of 1970, he was disqualified to contest election for Constituency LA- 34 Jammu and others- VI. 15. The scheme of constitution of Legislative Assembly, as contemplated in the Constitution and other laws, has to be kept in view while resolving the controversy under consideration. Article 22(1) of the Azad Jammu Kashmir Interim Constitution Act, 1974 postulates that the Legislature of Azad Jammu and Kashmir shall consist of a Legislative Assembly consisting of forty-eight members of whom-- (a) forty shall be elected directly on the basis of adult franchise; (b) ........................... (c) one who shall be from amongst the Ulema-e-Din or Mushaikh and well-versed with the teachings of Islam, shall be elected by the directly elected members; (d) one, who shall be from amongst the Jammu and Kashmir State subjects residing abroad, shall be elected by the directly elected members; (e) ........................... Section 24 (1) of the Act postulates the qualifications applicable to a person to be elected as a member of the Assembly. These are : (a) that he is a State subject; (b) that he is not less than twenty-five years of age; and (c) his name appears on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan. ' Subsection (2) postulates that a person shall be disqualified from being so elected if--he is otherwise disqualified from being a member of the Assembly by this Act or by or under any other law. ' The disqualifications referred to in clause (f) are available in other election laws. Among them, the Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970 (Ordinance VI of 1970) is relevant to the proposition. Its section 2 is reproduced:- "Composition of the Legislative Assembly.-- As soon as may be after the promulgation of this Ordinance and notwithstanding anything contained in the Azad Jammu and Kashmir Government Act, 1968,there shall be constituted in the manner hereinafter appearing a Legislative Assembly consisting of-
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(1) twenty-eight members to be elected by the State subjects residing in the territories now under the administration of the Azad Government of the State of Jammu and Kashmir; (2) six members to be elected from amongst themselves by the refugees from the occupied areas of districts of Muzaffarabad, Anantnag (Islamabad) and Baramula as these existed on 14th day of August, 1947, who are now residing in any of the provinces of the Punjab, Balochistan, Sindh and North-West Frontier Province; (3) six members to be elected from amongst themselves by such of the State subjects from other parts of the State of Jammu and Kashmir, and State subjects originally residing in territories under the administration of Azad Government of the State of Jammu and Kashmir, as are now residing in the Provinces referred to in clause (2); (4) 16. It is important to note that the composition of the Legislative Assembly, as contemplated under section 2, rests on three categories of the members elected by the State subjects residing at different places. Such a composition is not available in any other State of the world including India and Pakistan. It is, therefore, to be kept in mind that the aforesaid composition of the Legislative Assembly has been framed in view of the extraordinary position of the State as its future status is yet to be determined. The State subjects are residing, in addition to Azad Kashmir territory, in Pakistan and foreign countries. The framers of the scheme, under a well-considered plan thought it fit to provide representation to all sections of the State people to maintain and keep intact the unity and identity of the State to enable the State subjects to exercise their right of self-determination in the manner of plebiscite as recognised by the UNCIP and Security Council Resolutions, to determine their future status. 17. Here it would be conducive to advert to the history of adult sufferage in the State, for facility of the proposition under consideration: ' The people of the State right from usurpation of their sovereignty by Dogra ruler by virtue of Treaty of Lahore of March 9, 1846 and Treaty of Amritsar of March 16, 1846, never acknowledged the right of despot to rule them. They uprose against the despotic rule from time to time and lately the movement assumed agitation shape in July, and October, 1931. In consequence of the sacrifices made by the people, some of their rights were accepted, in lieu of which Praja Sabha, the Legislative Assembly, was constituted in Dogra regime. The Praja Sabha consisted of 75 members, out of whom forty were elected directly. Be that as it may, in 1947, on emergence of free States of India and Pakistan, the people of the State of Jammu and Kashmir advised the ruler of the State to accede to Pakistan. On apprehending conspiracy between the Congress leaders and the ruler of the State, the people rose in revolt against the ruler and secured freedom of part of the areas of the State. On October 24, 1947, free revolutionary Government was formed. This Government was declared to be the Government of the whole of the State of Jammu and Kashmir representing all sections of population. On cease-fire truce, the right of self-determination of the people was acknowledged in the United Nations in the shape of resolutions on August 13, 1948 and January 5, 1949. As the future of the State was likely to be determined by free and impartial plebiscite, the provisional Government of Azad Jammu and Kashmir continued to be nominated by the working committee of All Jammu and Kashmir Muslim Conference as recognised by the Kashmir Affairs Ministry. The constitution of the Government, exercising legislative, executive and other allied functions, was governed by the Rules of Business of 1950, 1956 and 1958. In 1960, the constitution of the Government received a new attention and approach, on account of which right of vote was given to the citizens to enable them to elect their representatives at the level of Union Councils, Town and Area Committees. During this period, as a part of the scheme of franchise, the Azad Jammu and Kashmir Refugees Registration and Representation Act, 1960 was also enforced. It was deemed expedient to associate the refugees of Jammu and Kashmir State residing in Pakistan in
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the election of the President and members of the Council of Azad Government of the State of Jammu and Kashmir. Thus the representatives from amongst the refugees so elected under the aforesaid Act, alongwith the elected members of the Basic Democracies, constituted the electoral college for election to the office of the President of Azad Jammu and Kashmir as well as the Council of Azad Government of the State of Jammu and Kashmir. 18. The Council was composed of twelvs members, out of which six members were to be elected out of the elected members of the Basic Democracies within Azad Jammu and Kashmir territory, three members were elected out of the representatives of refugees from the Province of Kashmir and three members from the representatives of refugees from Jammu. The composition and constitution of the Council, later on known as the State Council, was modified and changed according to the circumstances in 1964, 1968 and 1970 when instead of State Council, Legislative Assembly was constituted. The provisions of section 2 of the Ordinance described above, were framed so as to give representation to all sections of the State subjects in the Legislative Assembly. 19. We have recorded the history of composition of the Council in order to highlight the object of the scheme of composition of the Legislative Assembly representing the State subjects residing within Azad Jammu and Kashmir territory, the State subjects from the occupied parts of districts Muzaffarabad, Baramula and Islamabad of Kashmir Province and other occupied parts of the State including the State subjects who originally resided in Azad Jammu and Kashmir but were presently residing in Paksitan. 20. Mr. S.M. Zafar, the learned Counsel, developed his argument in support of nomination of Sardar Sikandar Hayat Khan, respondent, by reference to clause (c), subsection (1) of section 24 of the Constitution to convince that a person was qualified to be elected as a member of the Assembly if his name appeared on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan. It was elaborated that once the name of a person was brought on the electoral roll, whether that electoral roll was for a constituency in Azad Jammu and Kashmir or a constituency in Pakistan, he was qualified to contest elections. As the name of the respondent appeared on the electoral roll for the Constituency LA-34 Jammu and others-VI, he was, in view of the learned Counsel, qualified to be elected as a member of the Assembly. It was emphasised that the respondent was protected by the operative part of clause (3) of section 2 of Ordinance VI of 1970 which referred to State subjects of other parts of the State, irrespective of the fact that they resided in Pakistan or not. Reference was made to a document showing thereby that late Sardar Fatah Muhammad, father of the respondent, secured a claim against his landed and some built-up property in a village of Tehsil Mehndar, showing thereby that the respondent was also a refugee from the occupied part of the State and by virtue of that, he was qualified to be elected as a member of the Assembly. Much effort was made to satisfy that reference to the words "residing in" used in categories (1) and (2) and concluding part of category (3) was deliberately avoided in the case of operative part of category (3). It was done to enable all the State subjects to exercise their right of franchise for being elected as members of the Assembly. The learned Counsel argued that irrespective of the fact that the respondent resided in Satellite Town, Rawalpindi or not, by virtue of the operative part of this provision, once his name appeared on the roll of the electoral area of either of the Constituencies, he was qualified to be elected as Member of the Assembly. Mr. Muhammad Siddique Farooqi, who appeared as amicus curiae, interpreted the provision in a different manner and argued that the words "as are now residing" used in the concluding part of category (3) were applicable to both, the State subjects from other parts of the State of Jammu and Kashmir and State subjects originally residing in the territory of Azad Jammu and Kashmir. The learned Counsel pointed out that if we omit to read the words "as are now residing" alongwith the operative part of category (3), the whole scheme becomes absurd as in that case all the State
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subjects including those now residing in the occupied part of the State shall be deemed to have a right to be elected as Member Legislative Assembly. 21. We have given the summary of the development of constitutional representation given to the State subjects during the transitory period till such time the right of self-determination is achieved. Unless we keep in view the aforesaid constitutional development, it would be difficult to appreciate the scheme of composition of the present Azad Jammu and Kashmir Legislative Assembly. 22. It is undenied that the framers of the Constitution and scheme of composition of the Assembly, purposely gave representation to all sections of the State subjects residing at different places including those settled in Pakistan and abroad. In case of twenty-eight members to be elected by the State subjects residing in Azad Jammu and Kashmir territory, there was no restriction, whatsoever, except the qualifications and disqualfications listed under section 24 of the Constitution and other allied laws applying to the election of members of the Assembly. It is permissible for a State subject from the occupied areas of the districts of Muzaffarabad, Islamabad and Baramula and other occupied parts of the State, to contest elections as member of the Assembly against any one or more than one seat. But this concession was not available to the State subjects residing in the territories now under the administration of the Azad Government of the State of Jammu and Kashmir to seek election against either of the seats reserved for the State subjects falling under category (2) or (3). This interpretation finds support from the departmental interpretation listed in instruction No, 4 of the Manual of Instructions issued by the Chief Election Commissioner, Azad Government of the State of Jammu and Kashmir, in 1990. It is reproduced: "Forty members…
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