' MOHAMMAD AZAM KHAN, C.J.--Through short order dated 25th January, 2015 the titled appeals were disposed off. The operative part of the short order is as under:- "4. Since the matter is of public importance therefore, the appeals are being disposed of through the following short order for the reasons to be recorded later:-
(a) There is no procedure prescribed for initiation of the process for appointment of the Chief Election Commissioner. The advice issued by the Azad Jammu and Kashmir Council on 16th November, 2015 of an eligible person who qualifies to be appointed as Chief Election Commissioner under the Act, 1992 is a valid advice.
(b) Under Section 50 of the Constitution Act, the Chief Election Commissioner has to be appointed by the President on the advice of the Council and section 6-A of the amending Ordinance XIX of 2015, provides appointment of Chief Election Commissioner without the advice of Council, therefore, this provision offends the Section 50 of Constitution Act.
(c) Since we have drawn the conclusion that the advice issued by the Council on 16th November, 2015 is valid and legal which is holding the field, therefore, in view of the conclusion reached at in Civil Appeal No,7/2016 titled AJ&K Council v. AJ&K Govt. And others, in presence of the advice for appointment of permanent Chief Election Commissioner, Acting Chief Election Commissioner cannot be appointed.
' Consequently, the Civil Appeal No,7/2016 titled AJ&K Council v. AJ&K Government and others is accepted. The Civil Appeal No, 8/2016 titled Ch. Tariq Farooq and others v. Azad Government and others has become infructuous in the light of the conclusion drawn in Civil Appeal No,7/2016 titled AJ&K Council v. AJ&K Government and others, hence stands dismissed whereas the Civil Appeal No,11/2016 titled Azad Government and others v. Ch. Tariq Farooq and others is partly accepted to the extent of modification in the impugned judgment of the High Court."
' The following are detailed reasons for the short order:-
2. The Chief Election Commissioner, Azad Jammu and Kashmir is appointed under section 50 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Act, 1974), by the President on the advice of the Azad Jammu and Kashmir Council. The office of the Chief Election Commissioner fell vacant on 14th April, 2015 due to retirement of Mr. Justice, (Rtd.) Munir Ahmed Chaudhary. The Azad Jammu and Kashmir Council issued an advice for appointment of Mr. Justice (Rtd.) Munir Ahmed Chaudhary (former Judge) High Court as Chief Election Commissioner on 7th September, 2015. The advice was returned by the President. The Chairman Azad Jammu and Kashmir Council on 15th November, 2015 withdrew the advice for appointment of Mr. Justice (Rtd), Munir Ahmed Chaudhary and issued fresh advice for appointment of Mr. Justice, Ghulam Mustafa Mughal, Chief Justice Azad Jammu and Kashmir High Court as Chief Election Commissioner. Before are issuance of advice by the Azad Jammu and Kashmir Council, the Azad Jammu and Kashmir Legislative Assembly amended the Chief Election Commissioner (Terms and Conditions) Act, 1992 (hereinafter shall be referred as the Act 1992), through the amending Ordinance XIX of 2015. The order for appointment of the Chief Election Commissioner in pursuance of advice dated 15th November, 2015, was not issued. The President, Azad Jammu and Kashmir while acting under section 6-A of the Chief Election Commissioner (Terms and Conditions) Act, 1992, appointed Mr. Justice, Ghulam Mustafa Mughal, Chief Justice of the High Court as Acting Chief Election Commissioner on 29th December, 2015. The appellants, in Appeal No,8 of 2016 filed a writ petition in the Azad Jammu and Kashmir High Court, whereby they challenged the provisions of section 6-A of the amending Ordinance, 2015 being ultra vires the Act, 1974 and also challenged the notification for appointment of the Acting Chief Election Commissioner dated 29th December, 2015 with the further prayer that the notification dated 29th December, 2015 may be brought in conformity with the provisions of section 50 of Act, 1974 and the office of the Chief Election Commissioner Azad Jammu and Kashmir may be filled in accordance with section 50 of Act, 1974. After necessary proceedings, the High Court through the impugned judgment dated 12th January, 2016, accepted the writ petition while declaring the provisions of section 6-A of Ordinance No,XIX of 2015, ultra vires the Constitution, the notification dated 29th December, 2015 for appointment of the Acting Chief Election Commissioner was set aside and the Azad Jammu and Kashmir Government was directed to send the panel of qualified persons to the Azad Jammu and Kashmir Council for appointment of the Chief Election Commissioner after consultation with the Leader of the House and the Leader of the Opposition. A further direction was issued that the Act, 1974 be suitably amended. The Azad Jammu and Kashmir Council, the Azad Government of the State of Jammu and Kashmir and Ch. Tariq Farooq and others have filed three separate appeals from the impugned judgment.
3. The Azad Jammu and Kashmir Council has challenged a part of the judgment and prayed that while modifying the judgment a direction be issued to respondents Nos.1 to 3, 6 and 7 to act in accordance with the advice sent by the Azad Jammu and Kashmir Council dated 15th November, 2015, the notification for appointment of the Hon'ble Judge, Mr. Justice, Ghulam Mustafa Mughal, Chief Justice High Court as Chief Election Commissioner, may be issued in the interest of justice and observation of the High Court for panel be quashed.
4. In Civil Appeal No,8 of 2016, titled Ch. Tariq Farooq and others v. Azad Government and others, a request has been made that by modifying the judgment of the High Court, a direction be issued to the respondents that they shall modify the notification dated 29th December, 2015 and appoint Mr. Justice, Ghulam Mustafa Mughal, Chief Justice of the High Court as Chief Election Commissioner, Azad Jammu and Kashmir under section 50 of the Act, 1974 instead of Acting Chief Election Commissioner.
5. In the third appeal titled Azad Government and others v. Ch. Tariq Farooq and others, Civil Appeal No,11 of 2016, the judgment of the High Court has been challenged to the extent of striking down section 6-A of Ordinance No,XIX of 2015 and appointment notification of the Chief Election Commissioner dated 29th December, 2015 with a prayer that the judgment to this extent may be set aside.
6. Mr. Sadaqat Hussain Raja, Advocate, counsel for the appellants, Azad Jammu and Kashmir Council in Appeal No,7 of 2016, argued that the Chief Election Commissioner Azad Jammu and Kashmir is appointed under section 50 of the Act, 1974 by the President on the advice of the Azad Jammu and Kashmir Council. The judgment of the High Court to the extent of paragraphs Nos.18, 19, 20 and 21 is against the provisions of the Act, 1974, particularly section 50 of the said Act. The learned counsel submitted that the Act, 1974 is unique in its character, apart from advice under Section 7 like Article 48 of the Constitution of Islamic Republic of Pakistan, 1973, in the scheme of Act, 1974, three types of other advices are provided. The advice under section 7 of Act, 1974 provides that the President has to act on the advice of the Prime Minister. The opening words of section 7 of Act, 1974, say that "subject to an express provision to the contrary" in this Act, the President shall act on and in accordance with the advice of the Prime Minister. The learned counsel submitted that the use of words "subject to an express provision to the contrary" in this Act makes it clear that there is some contrary provision relating to the exercise of powers by the President under Act, 1974. These words are missing in the Constitution of Islamic Republic of Pakistan, 1973. The second type of advice is provided under sections 42 and 43 of the Act, 1974 for appointment of the Judges of the Supreme Court, the Judges and the Chief Justice of the High Court which provide that a Judge of the Supreme Court shall be appointed by the President on the advice of the Council after consultation with the Chief Justice of the Azad Jammu and Kashmir and section 43 of Act, 1974 provides that the Chief Justice of the Azad Jammu and Kashmir High Court shall be appointed by the President on the advice of the Council after consultation with the Chief Justice of the Azad Jammu and Kashmir. Section 43 of Act, 1974, further provides that a Judge of the High Court shall be appointed by the President on the advice of the Council after consultation with the Chief Justice, Azad Jammu and Kashmir High Court and the Chief Justice of the Azad Jammu and Kashmir. The appointments of the Judge of the Supreme Court, Chief Justice of the High Court and a Judge of the High Court are made by the President on the advice of the Council after consultation. The learned counsel submitted that the third type of advice relates to the appointment of the Chief Justice, Azad Jammu and Kashmir, Chief Election Commissioner and the Auditor General. The Chief Justice is appointed under section 42 of Act, 1974 by the President on the advice of the Council. The Chief Election Commissioner is appointed under section 50 of Act, 1974 by the President on the advice of the Council and the Auditor General is appointed under section 50-A of the Act, 1974 by the President on the advice of the Council. There is no concept of consultation for appointment to these offices. The appointments have to be made only on the advice of the Council. The concept of panel is interconnected with the consultation. When the President consults with the Chief Justice for appointment of a Judge, the consultation is provided in the form of panel. This Court observed in Younis Tahir's case [PLD 2012 SC (AJ&K) 42] that the Chief Justice shall send the panel of suitable persons to the President and the President shall seek advice from the Council. The appointment of the Judges has to be made from the panel recommended by the Chief Justice. There is no concept of panel for appointment of Chief Justice of Azad Jammu and Kashmir, the Chief Election Commissioner and the Auditor General. The Younis Tahir's case (supra) is based upon the judgment of the Supreme Court of Pakistan in the case reported as [PLD 1996 SC 324]. The learned counsel also referred to the cases reported as [PLD 1997 SC 84] and [PLD 2011 SC 2651. He also referred to section 53 of the Act, 1974 which relates to the powers of the President and issuance of proclamation of emergency on the advice of the Chairman of the Council and submitted that there is no concept of consultation. The President has to act on the advice of the Chairman of the Council. He submitted that the findings recorded by the High Court that the President shall send a panel of suitable persons after consultation with the Leader of the House and the Leader of the Opposition for appointment of Chief Election Commissioner, is against the Act, 1974 and not maintainable. He also submitted that a direction be issued to the President to issue order for appointment of the Chief Erection Commissioner in accordance with the advice issued by the Azad Jammu and Kashmir Council on 15th November, 2015. He further submitted that the Azad Jammu and Kashmir Government referred the matter regarding the legislation for the terms and conditions of Chief Election Commissioner, promulgated by the Azad Jammu and Kashmir Council in shape of Act, 2000 through Reference No,1 of 2015 to this Court and the Azad Jammu and Kashmir Council while bonafidely acting on the opinion rendered by this Court in Presidential Reference No,1 of 2015, withdrew the advice for appointment of Mr. Justice (R) Munir Ahmed Chaudhary, as Chief Election Commissioner and issued the fresh advice for appointment of Mr. Justice, Ghulam Mustafa Mughal, Chief Justice of the High Court as Chief Election Commissioner on 15th November, 2015.
7. The learned counsel vehemently argued that Schedule V, entry No,18 of the Azad Jammu and Kashmir Council Rules of Business, 1983, provides the process for appointment of the Chief Election Commissioner. He submitted that seeking of advice through panel relates to the cases where the consultation is provided and in the cases where consultation is not provided, there is no concept of panel.
8. The learned counsel submitted that the judgment of the High .Court is beyond the pleadings. In para No,19 of the impugned judgment, such relief has been granted to the respondents which was not prayed for. He lastly argued that the word "advice" in section 50 of the Act, 1974, has been used in the sense of command. He requested for acceptance of the appeal.
' In the case reported as [PLD 1997 SC 84], the scope of presidential powers before eighth amendment and after eighth amendment in relation to advice in Article 48 and discretionary powers has been resolved.
' In the case reported as Shahid Orakazi and another v. Pakistan through Secretary Law, Ministry of Law Islamabad and another [PLD 2011 Supreme Court 365], the question raised before the Supreme Court of Pakistan was regarding the appointment of Chairman National Accountability Bureau without consultation of the Leader of the Opposition in the National Assembly. It was declared that neither the President of Pakistan, nor the Prime Minister of Pakistan consulted with the Leader of the Opposition in the National Assembly in any manner whatsoever, thus, a mandatory requirement in that regard had remained unfulfilled. The appointment was set aside.
9. Barrister Humayun Nawaz Khan, Advocate, counsel for the appellants, in Civil Appeal No,11 of 2016 and respondents in Civil Appeals Nos.7 and 8 of 2016, submitted, that the writ petition was not maintainable. The petitioners in the High Court were not aggrieved from the non-implementation of the advice of the Council. Only the Azad Jammu and Kashmir Council was aggrieved, therefore, the writ petition merited dismissal on the sole ground. The learned counsel argued that the process for appointment of the Chief Election Commissioner has to be initiated from the office of the President and not the Azad Jammu and Kashmir Council. He submitted that the advice cannot be issued in vacuum. The advice is always issued when sought by the appointing authority. The President is the appointing authority of the Chief Election Commissioner. The President initiated the process for appointment of the Chief Election Commissioner by sending the panel of suitable persons. The Council has no jurisdiction to issue advice for appointment of Chief Election Commissioner beyond the panel sent by the President. He heavily relied upon the judgment of this Court delivered in the case reported as Muhammad Younis Tahir and others v. Azad Government and others [PLD 2012 SC (AJ&K) 42] and the opinion rendered by this Court in Presidential Reference No,1 of 2015. He submitted that the direction cannot be issued for implementation of advice dated 15th November, 2015. He submitted that the office of Chief Election Commissioner was vacant, therefore, after consultation with the Chief Justice of Azad Jammu and Kashmir, the Acting Chief Election Commissioner was appointed by the President under section 6-A of Act, 1992. After returning the advice to the Council, the advice no more is in field, therefore, it can not be implemented. He submitted that the advice issued by the Council is not valid as it was not sought by the appointing authority. The President sought the advice only in respect of three persons in the form of panel. No advice can be issued outside the panel. The learned counsel argued that even otherwise the advice cannot be implemented because it has been issued against the Council Rules of Business, 1983. The process has not been initiated by the competent authority and the approval has not been obtained from the Council Secretariat.
10. The learned counsel submitted that the portion of the judgment of the High Court, whereby section 6-A of the amending Ordinance XIX, 2015 has been declared ultra vires the Constitution, is against the statutory provisions. No office has been created through the amending Ordinance.
Only the stop-gap arrangement has been provided when the Chief Election Commissioner is not available, therefore, it was a valid piece of legislation. The learned counsel submitted that the Courts have no powers to place an embargo on the legislative authority of the Azad Jammu and Kashmir Legislative Assembly. The amending Ordinance XIX of 2015, including section 6-A is valid piece of Legislation. The learned counsel relied upon the' judgment of the Supreme Court of Pakistan delivered in the case reported as District Bar Accession, Rawalpindi and others v. Federal of Pakistan and others [PLD 2015 SC 401]. He referred to different pages of the judgment.
' In the case titled District Bar Accession, Rawalpindi and others vs. Federal of Pakistan and others [2015 PLD SC 401] the matter before the Court is amendment in the Constitution and not in subordinate law. We respectfully agree with the view observed therein about general principals laid down by the Supreme Court of Pakistan. The Rule of law laid down in amendment of Constitution is not applicable in the matter in hand.
11. Ch. Shoukat Aziz, Additional Advocate General, submitted that according to entry No,20 of Schedule V of Rules of Business 1985, the Election Commission is a special institution of Law, Justice, Parliamentary Affairs and Human Rights Department and the process for appointment of the Chief Election Commissioner has to be initiated from the Law, Justice, Parliamentary Affairs and Human Rights Department of the Azad Jammu and Kashmir. He relied upon the cases reported as [2014 SCR 43], [PLD 1994 SC 324] and [2000 YLR 2828].
12. Mr. Mansoor Pervaiz Khan, Advocate-General although admitted that there is no concept of consultation in section 50 of the Act, 1974 unlike sections 42 and 43 of the Act, 1974, however, he submitted that the word "consultation" should be read under section 50 like sections 42 and 43. He requested for dismissal of the appeal filed by the Azad Jammu and Kashmir Council and acceptance of appeal filed by the Azad Jammu and Kashmir Government.
13. Raja Muhammad Hanif Khan, Advocate counsel foi the appellants in Appeal No,8 of 2016, submitted that the Chief Election Commissioner is appointed under section 50 of the Act, 1974 by the President on the advice of the Azad Jammu and Kashmir Council. The Chief Election Commissioner cannot be appointed without the advice of the Council. When the Chief Election Commissioner is appointed on the advice of the council, the Acting Chief Election Commissioner cannot be appointed without the advice of the Council. In Section 6-A of the amending Ordinance XIX of 2015, the word "advice" is missing, therefore, Section 6-A of the amending Ordinance XIX of 2015 is against the provisions of section 50 of the Act, 1974. The learned counsel submitted that the Chief Election Commissioner has to exercise the powers under various laws, including the Azad Jammu and Kashmir Council (Elections) Act, 1976 and the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. These Acts, refer to the Chief Election Commissioner appointed under section 50 of the Act, 1974. Under the referred laws, only such Chief Election Commissioner can exercise powers, who is appointed under section 50 of the Act, 1974. The Acting Chief Election Commissioner appointed without the advice of the Council cannot exercise powers under the referred laws, as such, the High Court was right in declaring the provisions of section 6-A of the Ordinance of 2015 against section 50 of the Act, 1974. The learned counsel further submitted that the Azad Jammu and Kashmir Council issued the advice for appointment of the Chief Election Commissioner on 15th November, 2015. The advice has not been withdrawn by the Council. It is still holding the field. In the presence of advice under section 50 of the Act, 1974 for appointment of Chief .Election Commissioner, the order for appointment of Acting Chief Election Commissioner cannot be issued. The learned counsel further submitted that the advice was issued under Section 50 of Act, 1974 and it is binding on the President and the President has to issue orders for appointment of the Chief Election Commissioner accordingly. The learned counsel for interpretation of the word "advice" relied upon the Corpus Juris second volume. The learned counsel lastly argued that the High Court has recorded certain observations which are beyond the pleadings and not prayed for by the petitioners, appellants herein. He submitted that the observation made by the High Court that the President shall send the panel of suitable persons after consultation with the Leader of the House and the Leader of the Opposition in the Legislative Assembly to the Council for appointment of the Chief Election Commissioner, is against the statutory provisions. Under the Constitution of Islamic Republic of Pakistan, 1973, under Article 213, the consultation with the Leader of the House and the Leader of the Opposition is specifically provided. The finding is not maintainable. He requested for issuance of direction to the respondents to implement the advice of the Council issued on 15th November, 2015.
14. Mr. Sadaqat Hussain Raja, Advocate, in rebuttal submitted that the consultation was made with the Chief Justice for appointment of Acting Chief Election Commissioner, while concealing the fact that the advice for appointment of the Chief Election Commissioner has been issued by the Council. He submitted that the advice dated 15th November, 2015 has not been withdrawn by the Council. It is binding on the President because it has been issued in a lawful manner for appointment of the Chief Election Commissioner. The learned counsel further submitted that from the combined reading of the Rules of Business 1985, and Council Rules of Business, 1983, it is clear that the President has to issue the order for appointment of the Chief Election Commissioner when the advice is issued under section 50 of Act, 1974. The learned counsel lastly argued that the amending Ordinance XIX of 2015 is against the provisions of section 50 of the Act, 1974. The High Court has rightly struck down the same.
15. Ch. Anwar-ul-Haq, proforma-respondent No,5 in Civil Appeal No,11 of 2016, has filed the written arguments. In the written arguments, it is submitted that the writ petition filed by the petitioners/appellants, Ch. Tariq Farooq and others, was not maintainable because they failed to point out that they are aggrieved persons. They have no locus standi to file the writ petition. The writ petition has been filed to reverse the opinion of this Court in Presidential Reference No,1 of 2015.
The writ petition was filed in violation of Rule 32 of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984, which was liable to be dismissed. It is further submitted in the written arguments that the judgment of the High Court to the extent of sending the panel of suitable persons to the Council for appointment of Chief Election Commissioner is a legal and valid one which has been passed according to the opinion of this Court rendered in Presidential Reference No,1 of 2015, wherein this Court observed that advice cannot be issued on its own, it is always sought and the President sought the advice by sending the panel of suitable persons. The Council is not legally competent to issue advice beyond the panel sent by the President. It is averred in the written arguments that the executive authority of the Council ha & to be exercised by the Council Secretariat consisting of the Federal Minister nominated by the Chairman and not more than three advisors appointed by the Chairman from amongst the Members of the Council. The Council has not competently been constituted, therefore, the executive powers exercised by the Council are not valid. He relied upon the judgment of this Court delivered in the case reported as Muhammad Younis Tahir and others v. Azad Government and others [PLD 2012 SC (AJ&K) 42]. The judgment of the High Court to the extent of suitably amending the law is in accordance with the judgment of this Court. He requested for dismissal of the appeal filed by the Azad Jammu and Kashmir Council.
16. We have heard the learned counsel for the parties and perused the record.
17. The Chief Election Commissioner, of Azad Jammu and Kashmir is appointed under Section 50 of Azad Jammu and Kashmir Interim Constitution Act, 1974. The same is reproduced as under:-
50. Chief Election Commissioner;--(1) There shall be a Chief Election Commissioner appointed by the President on the advice of the Council on such terms and conditions as may be prescribed.
(2) The person appointed as Chief Election Commissioner under the Azad Jammu and Kashmir Government Act, 1970, or deemed to have been so appointed and functioning as such immediately before the commencement of this Act shall be deemed to have been appointed as Chief Election Commissioner under subsection (1) on the same terms and conditions of service as are applicable to him immediately before the such commencement.
' The language implied in Section 50 is clear that President shall appoint Chief Election Commissioner on the advice of the Azad Jammu and Kashmir Council. The Government of Pakistan while acting in discharge of its responsibility under the UNCIP Resolutions approved the proposed repeal and enactment of the Azad Jammu and Kashmir Act, .1970 and authorized the President of Azad Jammu and Kashmir to introduce a bill in Legislative Assembly in Azad Jammu and Kashmir known as Azad Jammu and Kashmir Interim Constitution Act, 1974. The Azad Jammu and Kashmir Assembly passed the Act by two third majority and President assented to it. 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. Later on, an amendment was brought through 1st amendment Act, 1975, whereby the word 'advice of council' were inserted. The AJ&K Council on 7th September 2015 advised the President to appoint Mr. Justice (Rtd.) Munir Ahmed Chaudhary as Chief Election Commissioner under Section 50 of Act, 1974. The President of Azad Jammu and Kashmir while acting under Section 46 (A) of the Act, 1974 invoked the advisory jurisdiction of this Court for opinion that whether the Azad Jammu and Kashmir Council or the Azad Jammu and Kashmir Assembly has Legislative competence to make a law in respect of terms and conditions of Chief Election Commissioner and interpretation of provisions of the Azad Jammu and Kashmir Council Chief Election Commissioner (Terms and Conditions) Act, 2000.
18. This Court opined that "the matter of terms and conditions of the Chief Election Commissioner is within the Legislative competence of Azad Jammu and Kashmir Legislative Assembly," Thereafter, the President of Azad Jammu and Kashmir promulgated Ordinance No, XIX of 2015 on 22nd October, 2015, wherein apart from other Section, 6-A was added, which provided the Acting Chief Election Commissioner, Section 6-A is reproduce as under:- "6-A. Acting Chief Election Commissioner:- at any time when,
(a) The office of Chief Election Commission is vacant;
(b) The Chief Election Commission is absent or unable to perform the functions of his office due to any other cause; ' The person eligible under Section 3 shall be appointed by the President in consultation with the Chief Justice as Acting Chief Election Commissioner."
' A bare reading of Section 6-A makes it clear that Acting Chief Election Commissioner has to be appointed by the President with consultation of Chief Justice of Azad Jammu and Kashmir and the advice of the Council has not been provided.
19. After the opinion of this Court in Presidential Reference No,01 of 2015, the Azad Jammu and Kashmir Council withdrew the advice of Mr. Justice (Rtd.) Munir Ahmed Chaudhary, for appointment as the Chief Election Commissioner and on 15th November, 2015 issued the advice of Mr. Justice Ghulam Mustafa Mughal. Chief Justice of the Azad Jammu and Kashmir High Court for appointment as the Chief Election Commissioner. After receiving the advice the President addressed a letter to the Azad Jammu and Kashmir Council that advice of Mr. Justice Ghulam Mustafa Mughal, the Chief Justice of the Azad Jammu and Kashmir High Court for appointment as the Chief Election Commissioner be reconsidered because his name was not in the panel sent by the President of the Azad Jammu and Kashmir for Chief Election Commissioner. Later on, after consultation with the Chief Justice of the Azad Jammu and Kashmir ordered for appointment of Mr. Justice .Ghulam Mustafa Mughal, Chief Justice of the Azad Jammu and Kashmir High Court as Acting Chief Election Commissioner under Section 6-A of the Act, 1992 as added by amending Ordinance XIX of 2015.
20. In this background the writ petition was filed by Ch. Tariq Farooq and others. The Azad Jammu and Kashmir Interim Constitution Act, 1974 has unique characteristics, it provides parliamentary form of Government. The Azad Jammu and Kashmir Legislative Assembly and the Azad Jammu and Kashmir Council are two legislative bodies. The Azad Government and Council exercise executive authority in respect of the matter they have power to legislate. The scheme of the Act, 1974 provides mode for exercise of powers by the President on various types of advices. Like Constitution of Islamic Republic of Pakistan, 1973 , where under Article 48 the President has to act on advice of the Prime Ministry/Cabinet in 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 Minster and such advice is binding. We have already discussed in detail the scope of words "subject to an express provision to the contrary in this Act" in case titled Muhammad Younas Tahir and another v. Shoukat Aziz Advocate Muzaffarabad and others [PLD 2012 SC (AJ&K) 42], and observed that apart from the advice of the Prime Minster in Section 7, the advice of the Azad Jammu and Kashmir council is provided in Sections 42 and 43 of the Act, 1974.
The President exercises the powers on the advice of the Prime Minister of the Azad Jammu and Kashmir under Section 7. In case titled Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others [2000 YLR 2868], it was observed by this Court as under:- "that law is well settled that section of the Constitution Act is applicable to all sub-Constitutional laws and therefore the President has to act on advice even in those matters which are not mentioned in the Constitution Act itself. It is equally well settled by now that an express provision to the contrary made in the Constituting Act it self forms an exception to the rule mentioned above.
21. The word 'advice' has been used for the appointment of Judge of the Supreme Court, Chief Justice of the Azad Jammu and Kashmir under Section 42; Judge of the High Court, Chief Justice of the Azad Jammu and Kashmir High Court under section 43; under Section 50 for the appointment of the Chief Election Commissioner and; under Section 50(A) for the appointment of Auditor General of the Azad Jammu and Kashmir. For proper appreciation Sections 42, 43, 50 and 50 A of Act, 1974 are reproduced as under:-
42. Supreme Court of Azad Jammu and Kashmir.- (1) There shall be constituted a Supreme Court of Azad Jammu and Kashmir to be the highest Court of appeal.
(2)
(3) The Supreme Court shall consist of a Chief Justice to be known as Chief Justice Azad Jammu and Kashmir and two other Judges.
(4) The Chief Justice Azad Jammu and Kashmir shall be appointed by the President on the advice of the Council and each of the other Judges of the Supreme Court of Azad Jammu and Kashmir shall be appointed by the President on the advice of the Council after consultation with the said Chief Justice.
' Section 43 of Interim Constitution of Azad Jammu and Kashmir, 1974 is reproduced as under:-
43. High Court.- (1) There shall be a High Court for Azad Jammu and Kashmir, hereafter called the High Court, which shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Assembly.
1-A . (a) ....................
(b) ............
(c) ...............
(2) .................
(2-A) A Judge of High Court shall be appointed by the President on the advice of the Council and after consultation-
(a) with the Chief Justice of Azad Jammu and Kashmir, and
(b) except where the appointment is that of Chief Justice, with the Chief Justice of the High Court.
' Section 50 of Act, 1974 has already been produced in earlier part of the judgment in para No,17.
' Section 50-A of Act , 1974 is reproduced as under:- ' 50-A Auditor-General.- (1) There shall be,an Auditor-General of Azad Jammu and Kashmir which shall be appointed by the President on the advice of the council.
(2) ...............
(3) ...............
(4) ...............
(a) .............
(b) ....................
(5) ...............
(6) ...............
A combined reading of the Sections 7, 42, 43, 50 and 50-A of the Act, 1974 shows that under Section 7 the President has to act on and in accordance with advice of the Prime Minster of the Azad Jammu and Kashmir and such advice shall be binding on him subject to contrary provisions provided in the Act, 1974. Such provisions are exceptions for the appointment of the Chief Justice of the Azad Jammu and Kashmir, a Judge in the Supreme Court, Chief Justice of the Azad Jammu and Kashmir High Court, a Judge in the High Court, the Chief Election Commissioner and the Auditor General. The advice for these offices has to be tendered by the Azad Jammu and Kashmir Council. Section 42 provides that a Judge of the Supreme Court shall be appointed by the President on the advice of the Council and after consultation with Chief Justice of the Azad Jammu and Kashmir. Under section 43 Judge of the High Court shall be appointed by the President on the advice of the Council after consultation with Chief Justice of the Azad Jammu and Kashmir and Chief Justice of Azad Jammu and Kashmir High Court. The Chief Justice of the High Court is appointed on the advice of the AJ&K Council after consultation with Chief Justice AJ&K. While Chief Justice of the Azad Jammu and Kashmir, the Chief Election Commissioner and the Auditor General shall be appointed by the President on the advice of the Council. For the appointment on these three offices the word consultation is missing. The concept of panel relates to the consultation in the matters where consultation is provided. The President shall consult with the consulties, who shall provide panel of the suitable persons, qualified to be appointed against the post and the President shall seek the advice from the Council and Council shall issue advice from the said panel.
We have already resolved the proposition in the case titled Muhammad Younas Tahir and another v. Shoukat Aziz Advocate "Muzaffarabad and others [PLD 2012 SC (AJ&K) 42], in para 35, which was observed as under:- "35. The process of appointment of a Judge in the High Court has to be initiated by the Chief Justice of the High Court when the President seeks panels for the purpose of consultation. The Chief Justice shall immediately send the panel of eligible persons to the President who shall send the same to the Chief Justice of Azad Jammu and Kashmir and after seeking the panel from him, seek the advice from the Council for issuing the appointment orders."
' The Supreme Court of Pakistan in case titled Al-Jehad Trust through Raees-ul-Mujahidin Habib Al- Wahabul Khairi, and others v. Federation of Pakistan and others [PLD 1996 SC 324] has observed in para 80 as under:- "80. Coming back to Article 193 of the Constitution the plain reading of the provision is that the appointment of a Judge of the High Court is to be made by the President "after consultation" with :- -
(a) Chief Justice of Pakistan;
(b) Governor concerned; and
(c) Chief Justice of the High Court (except where the appointment is that of the Chief Justice).
' Here the intention is that the appointment is to be made by the President "after consultation" with three consultees, who are mentioned there. In the Constitution proper scheme is provided for the appointment, hence it can be called Constitutional appointment. For such appointment requires "consultation", which cannot be treated lightly as mere formality. To say that the President has sole power of appointment and opinion of the consultees can be ignored particularly of the Chief Justice of the High Court and the Chief Justice of Pakistan, who are supposed to be expert in the particular field of law in which the appointment is to be made, cannot be reasonable construction of the word "consultation". It is understandable that the Governor can find out from intelligence sources about the candidate who is to be appointed as a Judge and his report or opinion is to confined to that aspect of the matter. The President can refuse to appointment a candidate in whose favour Chief Justice of the High Court and Chief Justice of Pakistan have given their positive opinions, but Governor has given negative opinion for reasons of improper antecedents. The Chief Justice of the High Court and the Chief Justice of Pakistan normally know Advocates who appear in their Courts regularly and would nominate or recommend names of such Advocates who are capable and fit to be Judges of the High Court and their opinion, which is expert opinion in a way, cannot and should not be ignored, but must be given due weight. "Consultation" in the scheme has envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensus- oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive."
' Again the Supreme Court of Pakistan while dealing the scope of binding nature of advice in the matters under Article 48 and other Articles of Constitution of Islamic Republic of Pakistan, 1973, in the case titled Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others [PLD 1997 SC 84] observed as under:- "
26. Mr. Khairi contended before us that our Constitution of 1973 as it stands now contemplates the Parliamentary Form of Government but in respect of appointments of Judges of the superior Courts, advice of the Prime Minister is not binding on the President for the following reasons: Firstly, that the Judiciary stands separated from executive as provided under Article 175(3) of the Constitution means the whole judiciary and not the part to the extent of magisterial level. Secondly, in the Constitution on the subject of appointments of Judges in the superior judiciary special provisions exist with particular emphasis on Articles 177 and 193 to which general provision of Article 48(1) is not attracted, hence advice of the Prime Minister is not binding on the President. Thirdly, basic structure of the Constitution guarantees complete independence of judiciary. Fourthly, President of Pakistan has positive role in the Constitution to perform and is not a mere ceremonial head. Fifthly, citizen of Pakistan have right to see record of appointments of Judges, as right to information and secrecy in the matter of judicial appointments leads to misunderstanding, which can be avoided by making the appointments transparent. Mr. Khairi supplemented his arguments with large number of rulings which may be adverted to at later stage when the relevant points are taken up for proper consideration.
27. Raja Muhammad Akram, Senior Advocate for petitioner in C.P.54/1996. Contended that Article 48(1) of the Constitution is generally applicable with the exception of three categories. In First Category, there are cases in which President can act in his discretion. Such language is used in Article 48(6), Article 58(2)(b), Article 105(4), Article 213, Article 242(1)(1-A) and Article 243(2)(c). In the Second Category, there are Articles in which language used is such that advice under Article 48(1) becomes automatically not operative. Such Articles are: Articles 101, 92 and 93 in which there is self-contained provision of advice. In the Third Category, there are provisions where President is to act without advice of the Prime Minister, on the basis of Constitutional compulsion, Article 91(5) provides that Prime Minister shall hold office during the pleasure of the President. If Prime Minister does not command confidence, can be required to have vote of confidence. Article 75 provides for assent of President on the Bills. Article 46 mentions duties of Prime Minister in relation to the President including communication of information to him. Article 56(3) enables President to address either House of the Parliament or both Houses assembled together. Under Article 243 Supreme Command of Armed Forces is vested in the President.
' A distinction hqs been drawn in respect of advice of the Prime Minister/Cabinet under Article 48 and certain other Articles, which specifically provide self contained advice, as in Article 92, 93 and
101. The Supreme Court drawn the conclusion that nature of advice of Prime Minister/Cabinet in Article 48 is of general nature while advice mentioned in Articles 92, 93 and 101 is of special nature and when advice in respect of these Articles is issued by the Prime Minister it will not be governed under clause 1 of Article 48.
22. In the matters of the appointment of Judge of the Supreme Court, Judge of the High Court, Chief Justice of the High Court, where the President has to appoint Judge on the advice of the AJ&K Council and consultation with the Chief Justice of the Azad Jammu and Kashmir, the Chief Justice of the High Court, advice cannot be issued outside the panel of the eligible persons proposed by the Chief Justices but in the matter for appointment of the Chief Justice of the Azad Jammu and Kashmir under Section 42, Chief Election Commissioner under Section 50, Auditor General under Section 50 (A) of Act, 1974, there is no concept of consultation. When there is no concept of consultation, it could not be said that while issuing advice for appointment of the Chief Election Commissioner the advice has to be tendered by the Council from panel suggested by the president of the Azad Jammu and Kashmir.
23. The mode of initiation of the process for appointment of Chief Election Commissioner is not prescribed in the Azad Jammu and Kashmir Rules of Business, 1985, nor in Azad Jammu and Kashmir Council Rules of Business, 1983. The schedule 5 of the Azad Jammu and Kashmir Rules of Business, 1985 provides the list of cases to be submitted before the President for approval for issuance of orders. Entry No,20 provides the appointment of Chief Election Commissioner, leave removal and related matters. The counsel for the Government has heavily relied upon the arguments that approval has to be granted by the President for appointment of Chief Election Commissioner, therefore, process has to be initiated from the Office of the President and the President has the right to propose the panel of suitable persons and *council has to issue advice only from the panel sent by the President. We are unable to subscribe to the argument of the learned counsel. Rule 11(1) of the Rules of Business, provides that no order shall be issued without approval of the President in the cases enumerated in schedule 5. Similarly, Schedule 5 Azad Jammu and Kashmir Council Rules of Business, 1983 provide the cases which have to be submitted to the Prime Minster of Pakistan/Chairman of the Azad Jammu and Kashmir Council for orders.
Entry No,18 of said schedule provides the Chief Election Commissioner.
24. A combined reading of Entry 18 of Schedule 5 of the Azad Jammu and Kashmir Council Rules of Business, 1983 and Entry No,20 of the Azad Jammu and Kashmir Rules of Business, 1985, show that procedure for initiation of process is not provided in both the Rules, it is only provided that the file shall be placed before the Chairman of the Azad Jammu and Kashmir Council for appointment of Chief Election Commissioner and orders for appointment of Chief Election Commissioner shall not be issued without approval of the President.
25. We have observed in Muhammad Younas Tahir and another v. Shoukat Aziz Advocate Muzaffarabad and others [PLD 2012 SC (AJ&K) 42], that before issuance of the order for appointment of a Judge of the High Court, the President shall consult both the consultees, i.e, the Chief Justice of the Azad Jammu and Kashmir and the Chief Justice of the Azad Jammu and Kashmir High Court and after receiving the panel of suitable persons, he shall seek advice from the Council. Since both the consultees, "Chief Justices are expert in their fields the advice could only be issued out of the panel suggested by the Chief Justices. There is no concept of consultation in the appointment of the Chief Election Commissioner, therefore, there is no concept of issuance of advice from the panel suggested by the President. The findings in the Younas Tahir case supra, are clear that two Chief Justices shall send panel of the suitable persons and advice has to be issued from the panel. In Presidential Reference No,01 of 2015, we observed that advice cannot be issued in vacuum, it is issued when sought. The rule of law laid down in the Muhammad Younis Tahir Case supra is not applicable in the case of the Chief Election Commissioner because there is no concept of consultation, when there is no concept of consultation, the seeking of advice by the President means that the office of the President shall intimate the Azad Jammu and Kashmir Council that office of Chief Election Commissioner is vacant, the advice of eligible person be issued. A panel may be proposed but it is not mandatory to issue advice from the said panel.
The learned High Court while disposing of the writ petition has observed that in Constitution of Pakistan in Article 213, it is provided that Chief Election Commissioner shall be appointed with consultation of the Leader of House and the Leader of Opposition, therefore, President shall send panel of the suitable persons after consultation with the Leader of House and the Leader of Opposition. In Article 213, of the Constitution of Islamic Republic of Pakistan it is specifically provided that the Chief Election Commissioner shall be appointed by the President after consultation with Leader of House and Leader of Opposition, while no such provision exists in Act, 1974. The findings for sending the panel by the President is not maintainable
26. Section 7 of the Act, 1974, provides that advice of the Prime 'and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. As was succinctly put by Hamoodur Rahman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313, 324), under a Constitutional system which provides for judicial review of executive actions:- "It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency".
' While dealing with transfer of investigation from one police officer to another, this Court applied the same principles by holding that the Investigating Authorities do not have an unfettered authority of running investigation according to their whim and caprice. They can be pushed back to their allotted turf if and when they overstep it. In the case of Anwar Ahmed Khan v. The State (1996 SCM R 24), this Court held that the High Court in exercise of its jurisdiction was competent to pass necessary orders where investigation was mala fide or without jurisdiction to ensure justice and fair play. It was also held in the case of Muhammad Latif; ASI, Police Station Sadar, Sheikhupura v. Sharifan Bibi and another (supra) that the High Court in exercise of its constitutional jurisdiction could pass appropriate orders where investigation is mala fide. In the case of Nasrullah Khan v.
Manzoor Hussain and others (supra) this Court declined to interfere with the order of the High Court directing entrustment of the investigation of the case to some responsible officer of repute. In the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCM R 276) this Court after referring to a string of judgments of this Court, Privy Council and Indian Supreme Court reiterated the same principle. The same view was also reaffirmed in the cases of Saeed Hussain Shah v. The State (1996 SCM R 504), Raja Rustam Ali Khan. v. Muhammad Hanif and 6 others (1997 SCM R 2008), Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others (1979 SCM R 484), Mazhar Naeem Qureshi v. The State (1999 SCM R 828), Ajmeel Khan v. Abdur Rahim and others (PLD 2009 SC 102), Hayatullah Khan and another v. Muhammad Khan and others (2011 SCM R 1354), Muhammad Ali v. Additional I. G. (supra) and S. N. Sharma v. Bipen Kumar Tiwari and others (AIR 1970 SC 786).
20. Next comes the vires of the provisions contained in subsection (6) of Section 22-A and Section 25 of the Cr.P.C. A provision of law can be declared ultra vires if it is violative of the provisions of the Constitution which guarantee fundamental rights, independence of judiciary or its separation from the executive. An examination and empirical verification of these provisions will show that they do not infringe any of the fundamental rights guaranteed by the Constitution. They on the contrary, not only facilitate their enforcement but also guard against their infringement by providing expeditious and inexpensive justice to the people at their doorstep. It does not even remotely impinge upon the independence of judiciary nor does it militate against the concept of its separation from the executive. When the Ex-officio Justice of Peace passes orders, issues directions, or takes actions under the aegis of judiciary rather than the executive, he instead of going under the thumb of the executive, in fact, brings the executive under the thumb of law. We, therefore, without a moment's hesitation hold that these provisions cannot be declared ultra vires on either of the criteria mentioned above. Their vires even on the yardstick of the legislative competence cannot be questioned when we don't find any defect in the legislative competence nor has it been imputed thereto by any of the parties before us.
21. Having thus considered, we hold that the functions performed by the Ex-officio Justice of Peace being quasi judicial in nature cannot be termed as executive, administrative or ministerial; that such functions being complementary to those of the police do not amount to interference in the investigative domain of the latter and thus cannot be held to be violative of the judgments of this Court rendered in the cases of Muhammad Bashir v. Station House Officer, Okara Cantt. And others and Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (supra) and that insertion of subsection (6) of Sections 22-A and 25 of the Cr.P.C. Through the Code of Criminal Procedure (3rd Amendment Ordinance) CXXXI of 2002 is not ultra vires by any attribute. In this view of the matter, we direct that the cases be listed before the benches for decision in accordance with law. We, while parting with the judgment appreciate the enlightened assistance rendered by Khawaja Haris -Ahmad, learned Sr. ASC who despite his heavy pre-occupations honoured the words of this Court.
Sd/- Anwar Zaheer Jamali, C.J. Chief Justice Sd/- Sd/- Mian Saqib Nisar, J Ejaz Afzal Khan, J Sd/- Mushir Alam, J ' I agree. However, I have added a separate note. Sd/- Manzoor Ahmad Malik, J ' MANZOOR AHMAD MALIK, J.-- I have had the pivilege of going through the erudite judgment rendered by my learned brother Hon'ble Mr. Justice Ejaz Afzal Khan. While agreeing with the conclusion drawn by his lordship, I am adding following note to attend to certain aspects which are germane to the lis.
2. The past experience of around 14 years (since the insertion of these provisions into the Code of Criminal Procedure) would unmistakeably reveal that these provisions especially Section 22-A of the Code of Criminal Pr6'cedure, though beneficial and advantageous to the public at large, yet in myriad cases, it has been misused and abused.
' Once a false criminal case is registered against an individual, it becomes exceedingly difficult for him/her to get rid of it. The time and money which is spent on acquiring a clean chit by way of cancellation of the case or acquittal is not hard to fathom. There is no denying the fact that at times false and frivolous cases are got registered just to humble and harass the opposite party. In such a milieu, powers given to an ex-officio Justice of the Peace under subsection (6) of Section 22-A, Code of Criminal Procedure, to issue appropriate directions on a complaint filed by an aggrieved person for registration of a criminal case (Clause-i) and for transfer of investigation from one police officer to another (Clause-ii) though efficacious and expeditious besides being at the doorstep, but at the same time, these provisions should not be unbridled or open-ended. These provisions must be defined, structured and its contour delineated to obviate misuse by influential and unscrupulous elements. Therefore:-
(i) The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non- registration of a criminal case under subsection (6)(i) of section 22-A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e, DPO, RPO etc., to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy.
(ii) So far as transfer of investigation of a criminal case from one police officer to another police officer is concerned, a complete mechanism has been provided in the Police Order, 2002.
' However, Clause (ii) of Subsection (6) of Section 22-A, Code of Criminal Procedure has given power to the ex-officio Justice of the Peace to issue appropriate direction to the concerned police authorities for the transfer of investigation of a case from one police officer to another, but it does not prescribe a criterion or mechanism in so many words as to what might be the standard or what reasons should prevail with the ex-officio Justice of the Peace while issuing such a direction.
To issue a direction regarding transfer of investigation by ex-officio Justice of the Peace without taking into consideration the attending circumstances of the case may be counter-productive and may defeat the purpose of the mechanism as provided in the Police Order, 2002, thus may result into unnecessary interference with the working of an agency. Therefore, it would be appropriate for the ex-officio Justice of the Peace, before issuance of any direction regarding the change of investigation, to satisfy himself from the available record that the grievance of the aggrieved person (who has filed the application for this purpose) has not been redressed by the Police Officers/authorities as provided in the Police Order, 2002.
(Sd.)
Manzoor Ahmad Malik, J