' AZHAR SALEEM BABAR, J.--The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of the impugned Ordinance XIX/2015 dated 22.10.2015, has been challenged as ultravires to the Constitution. A further direction is also solicited that notification dated 29.12.2015, pertaining to appointment of Acting Chief Election Commissioner may be brought in conformity with provisions of Section 50 of the Interim Constitution Act.
2. Precise fact of the case - is that the office of Chief 'Election Commissioner, Azad Jammu and Kashmir, is lying vacant since 14.04.2015 and it is constitutional obligation of respondents to appoint Chief Election Commissioner before expiry of term of Assembly i,e. 60 days. It is further averred that Government-respondent firstly submitted a reference in the apex Court and thereafter amended the provisions of Chief Election Commissioner (Terms and Conditions) Act, 1992, through the impugned Ordinance XIX of 2015 dated 22.10.2015. It is maintained that according to provisions of Section 50 of the Interim Constitution, Azad Jammu and Kashmir Council, sent its advice on 16.11.2015 to appoint Justice Ghulam Mustafa Mughal, Chief Justice of Azad Jammu and Kashmir High Court, to be the Chief Election Commissioner of Azad Jammu and Kashmir, in addition to his duties. The respondents, however, did not notify permanent Chief Election Commissioner of Azad Jammu and Kashmir as per advice and also did not send the matter for reconsideration to the Council. It is claimed that petitioners Nos. 1 and 2 are Legislators of Azad Jammu and Kashmir who are directly affected due to promulgation of the impugned Ordinance, which was enacted and promulgated on the same date i,e. 22.10.2015. Likewise petitioner No,3 claimed that he is practicing Advocate of the Supreme Court and a Member of the Azad Jammu and Kashmir Bar Council who has been affected due to promulgation of unconstitutional Ordinance. The petitioners craved that by setting aside the Ordinance under challenge, respondents may be directed to modify notification dated 29.12.2015, making the same in conformity with the provisions of Section 50 of the Interim Constitution, while implementing the advice of the Prime Minister/Chairman Azad Jammu and Kashmir Council dated 16.11.2015, hence, the instant constitutional petition.
3. The writ petition has been resisted by respondents Nos.1 and 2 through filing written statement, wherein it is stated that advice of Council is not a public document and petitioners have illegally obtained a copy of the same and also violated the mandatory requirement of High Court Procedure Rules regarding certified copies of documents under challenge, therefore, the instant writ petition is not maintainable under law. It is contended that as not a single violation of law and constitution has been pointed out, hence, the same is liable to be dismissed. It is further averred that petitioners are not aggrieved due to non-implementation of the advice dated 16.11.2015, instead it is the issuing authority i,e. Council who is aggrieved due to non-implementation of the advice dated 16.11.2015, who has started this proxy litigation without following due process of law by reconsidering the advice as per Presidential letter dated 30.11.2015. It is further stated that the Supreme Court of Azad Jammu and Kashmir has already resolved the controversy through its opinion in Presidential Reference No,01/2015 and instant petition has been filed against opinion of Hon'ble Supreme Court. It is maintained that petitioners are not aggrieved of appointment of either Acting Chief Election Commissioner or regular Chief Election Commissioner. It is stated that the instant writ petition has been filed just to jeopardize the holding of upcoming general elections within timeline given by the Constitution which are going to be held after few months, hence, it is required that the office of Chief Election Commissioner may immediately be filled without further delay. It is further averred that the President of Azad Jammu and Kashmir sent a summary of proposed panel for appointment to the post of Chief Election Commissioner consisting of only three names i,e. (1) Mr. Justice (Retired) Sher Zaman. Chaudhary, (2) Mr. Justice (Retired) Basharat Sheikh and (3) Mr. Justice (Retired) Khawaja Shahad Ahmed, but as per narration of the impugned advice the name of learned incumbent Chief Justice of the High Court appears at Sr. No,7 of proposed summary, hence, the impugned advice is illegal and unconstitutional on fact of it being made beyond proposed panel, hence, rightly not acted upon by the President. It is narrated that advice dated 16.11.2015, has been issued on letterhead of the Prime Minister of Pakistan under Prime Minister's Office order No,PM's Office U.O. No,3416/Secy (PM)/2015 which is also hit by dictum of apex Court in Raja Muhammad Irshad's Case, reported as 2007 SCR 419. It is also stated that as per Council Rules of Business, 1983, it is incumbent upon the AJ&K Council Secretariat to seek order of Chairman AJ&K Council on duly processed file upon summary/proposed panel sent by the worthy President of Azad Jammu and Kashmir without any addition or subtraction but the instant case is a clear deviation from law wherein an altogether new summary/panel has been put up by the Council Secretariat to Chairman AJ&K Council, resulting in advice dated 16.11.2015 as illegal which has rightly not been accepted. It is further stated that the President of Azad Jammu and Kashmir has pointed out illegalities in the advice supra, vide letter No,PS/858/2015 dated 30.11.2015, hence, requested for reconsideration of advice on the basis, of already proposed panel, therefore, the same is no more holding the field but the Ordinance is not ultra-vires to the constitution by any stretch of arguments and notification of Acting Chief Election Commissioner cannot be modified to fulfill the personal whims and wishes of petitioners, hence, prayed for dismissal of the instant writ petition with costs.
4. The writ petition has been resisted by respondents Nos.3 and 6 by filing separate written statement. The facts of written statement are same as the facts of written statement filed by respondents Nos. I and 2, therefore, need not to be reiterated here for the sake of brevity and convenience.
5. The respondent No,4 has filed written statement on 04.01.2016, wherein it is stated that the President of Azad Jammu and Kashmir is constitutional/ceremonial head of the State but he did not act in accordance with advice tendered to him by the. Chairman of Council for regular appointment of Chief Election Commissioner, hence, the process of appointment of Acting Chief Election Commissioner is illegal. It is stated that notification dated 29.12.2015 was issued by violating Section 50 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and the Rules of Business 1985, according to which the President is bound to act in accordance with advice of the Azad Jammu and Kashmir Council. It is averred that Azad Jammu and Kashmir Council has performed its constitutional obligations but the President of the State and Government of Azad Jammu and Kashmir did not act in accordance with advice of the Azad Jammu and Kashmir Council, hence, submitted for acceptance of writ petition.
6. We have heard the learned counsel for parties and learned Additional Advocate General. A preliminary objection raised by the non-petitioners is that the petitioners are not aggrieved in the eye of law. In this regard it has been contended that none of petitioners is a candidate for the slot of Chief Election Commissioner. So, the petitioners do not fall within ambit of an aggrieved person. This objection is not worth consideration for the simple reason that the petitioners have challenged the vires of Section 6-A of the impugned Ordinance XIX of 2015. It has been contended by the petitioners that the impugned piece of legislation is violate of the provisions and scheme of Constitution and notification dated 29.12.2015, as well whereby Mr. Justice Glulam Mustafa Mughal Chief Justice Azad Jammu and Kashmir High Court has been appointed as Acting Chief Election Commissioner. The petitioners Nos. 1 and 2 are Members of Legislative Assembly, whereas petitioner No,3 is an Advocate of Supreme Court, as such they claim to believe in supremacy of Constitution. As contended by the petitioners the impugned piece of legislation and the impugned notification are against the provisions of Interim Constitution Act, 1974 (hereinafter may be called as the Constitution Act). The petitioners have a right to challenge the validity of impugned Ordinance and the notification. They are, therefore, aggrieved in the eye of law. In this regard [PLD 2013 (AJ&K) 34], is a relevant case wherein it has been concluded by the High Court of Azad Jammu and Kashmir as under:-- <i>"46. The lawyers as a class in view of their professional business are obliged to ensure the supremacy of Constitution and rule of law without any fear and favour. For the sake of arguments if petitioners may not be treated as aggrieved, even then, this Court while hearing a case or a matter if comes across that any subordinate law or its provision takes away or abridges fundamental rights conferred by section 4 of the Interim Constitution Act, 1974 or is violative of any constitutional provision then this Court is duty bound to strike down such provisions as </i> ' The matter can be looked into through another angle as well. Every qualified State Subject has a fundamental right to vote for a candidate for membership of the Legislative Assembly.
If an election to the Legislative Assembly of Azad Jammu and Kashmir is held in pursuance of notification dated 29.12.2015 by which Justice Ghulam Mustafa Mughal, Chief Justice Azad Jammu and Kashmir High Court has been appointed as Acting Chief Election Commissioner and the elections are held as void later on because of such illegal appointment, fundamental rights of petitioners would be infringed. The petitioners fall within the definition of aggrieved person from this aspect as well.
7. Second preliminary objection towards maintainability of the instant writ petition is that mandatory provisions of Rule 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 have been violated. In this context it would suffice to say that the petitioners have challenged validity of the impugned Ordinance XIX of 2015 dated 22.10.2015 and notification dated 29.12.2015. Both the documents find place as (Annexures PB and PB/l) with the memorandum of writ petition. These documents have been issued by Law, Justice, Parliamentary Affairs and Human Rights Department of Azad Jammu and Kashmir and have been attested by Additional Secretary of the same department. It may be refreshed here that it is mandatory under Rule 32(2) ibid, to attach attested copies of the impugned orders/ notifications only. So, the necessary ingredients of Rule 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, have been complied with. The non-attested copies of rest of documents do not infringe the mandatory Rule 32(2) ibid, so objection to this extent is not maintainable.
8. Another objection raised by the non-petitioners relates to obtaining copy of a confidential document. It has been contended that advice of the Council is not a public document and the petitioners have obtained a copy of such advice without undergoing the process of law, so the writ petition is not maintainable. The learned counsel for respondents could not point out any provision of law which may entail penalty on the petitioners for so doing. So, the objection is overruled and it is concluded that it does not result in dismissal of writ petition on this ground.
9. On merits it has been contended by the learned counsel for petitioners that a Chief Election Commissioner can be appointed under Section 50 of the Interim Constitution Act, 1974, but the office of Acting Chief Election Commissioner has not been provided in the Constitution Act. Learned counsel for petitioners is of the view that office of Chief Election Commissioner is a Constitutional office and Acting Chief Election Commissioner has also to disburse the same functions as Chief Election Commissioner. So, office of Acting Chief Election Commissioner could be created through Constitutional amendment only and such an office cannot be created through subordinate legislation like Ordinance or Act of the Assembly.
10. Raja Muhammad Hanif Khan Advocate, while arguing his case on behalf of petitioners has vehemently contended that some synonymous offices have been mentioned in the Constitution Act like the President, the Prime Minister, the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of Azad Jammu and Kashmir High Court and in this context it has been explained that all the four Constitutional offices aforementioned have further been supplemented by creation of acting incumbents under different provisions of the Constitution Act. It has been elaborated that Section 8 of the Constitution Act provides that Speaker of the Assembly shall act as the President when the President is unable to perform functions of his office. Likewise Section 17 of the Constitution Act provides that a Senior Minister shall act as Prime Minister if the office of Prime Minister has become vacant by reason of his ceasing to be member of the Assembly etc. Section 42(8) of the Constitution Act provides that when the office of Chief Justice of Azad Jammu and Kashmir is vacant or the Chief Justice is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most Senior Judge of the Supreme Court to act as Chief Justice of Azad Jammu and Kashmir, while Section 43(A) provides that Senior most Judge of the High Court shall be appointed by the President as Acting Chief Justice, if the office of Chief Justice High Court is vacant or the Chief Justice is absent or unable to perform the functions of his office due to any other cause. Learned counsel has argued that no similar provision in the Constitution Act has been provided to enable appointment of an Acting Chief Election Commissioner in the Constitution Act. So, the non-petitioners have violated the scheme of Constitution by creating the office of Acting Chief Election Commissioner through the impugned Ordinance No XIX of 2015. It has been further argued in this behalf that. Acting Chief Election Commissioner cannot perform the functions of Chief Election Commissioner because Section 2(3) of the Constitution Act defines the word Commissioner as Chief Election Commissioner and this definition does not include the word "Acting Chief Election Commissioner." It has also been asserted that Chief Election Commissioner is obliged to conduct elections to the members of Legislative Assembly under the Elections Ordinance, 1970 and the words "Acting Chief Election Commissioner" have nowhere been mentioned in the aforementioned Ordinance. So, the primary and the most important function of Chief Election Commissioner to conduct general elections cannot be performed by an Acting Chief Election Commissioner. Learned counsel for the petitioners has referred to different Constitutions of Pakistan by elaborating that office of Acting Chief Election Commissioner did not exist in the Constitution of 1956, whereas there was a provision of Acting Chief Election Commissioner in the Constitution of 1962. In the same way the office of Chief Election Commissioner has been created in the Constitution of Pakistan 1973, under Article 213, whereas an independent provision of Acting Chief Election Commissioner under Article 217 has been provided in CoP, 1973. On the point that whether a Constitutional office can be created through subordinate legislation, learned counsel has contended that a lacuna in the Constitution cannot be filled in through subordinate legislation. He has placed reliance on [PLD 1996 (SC) 324], relevant pages (531-532). The learned counsel has further argued that omission of creation of the office of Acting Chief Election Commissioner in the Constitution Act is intentional because acting incumbent for the Constitutional offices of the President, the Prime Minister and the Chief Justices have been provided under different Sections of the Constitution Act. So, in his opinion exclusion of the office of Acting Chief Election Commissioner attracts the principles "express mention of one thing is exclusion of the other" in this regard reliance has been placed on [PLD 2013 (SC) 829] relevant page (970). Learned counsel is of the opinion that if it is held that section 6-A of the impugned Ordinance is not ultra vires to the Constitution Act, in that case Acting Chief Election Commissioner has to be appointed on advice of the Council because he has the same status and functions as Chief Election Commissioner. The principle that where a Constitution provides a criterion for doing a thing in one provision, then that criterion can be utilized for doing another thing of similar nature. Learned counsel relied on [PLD 1996 SC 324] and [1992 MLD 2083] in this regard.
11. Barrister Humayun Nawaz Khan, argued the case on behalf of non-petitioners Nos.1 and 2 and he was assisted by Ch. Shoukat Aziz, Additional Advocate General for respondents Nos.3, 5, 6 and 7. However, respondent No,4 i,e, Kashmir Council is represented by Sadaqat Hussain Raja, Advocate. It may be mentioned here that Sadaqat Hussain Raja, Advocate on behalf of non- petitioner No,4, has admitted the claim of the petitioners and has requested to accept the writ petition with a direction to Azad Jammu and Kashmir Government and the President to act in accordance with the advice of the Azad Jammu and Kashmir Council dated 16.11.2015.
Arguments of the petitioners and non-petitioner No,4 are similar and the petitioners as well as Kashmir Council have defended the advice tendered by Kashmir Council on 16.11.2015.
12. Barrister Humayun Nawaz Khan and Additional Advocate General are of the view that impugned Section 6-A of the Ordinance XIX of 2015, is not violate of any provision of the Constitution Act. It has been argued that the Constitution Act does not provide the office of Acting Chief Election Commissioner. The Azad Jammu and Kashmir. Legislative Assembly formulated a law titled the Chief Election Commissioner (Terms and Conditions) Act 1992, it was felt that office of Acting Chief Election Commissioner has not been provided by the Constitution Act, so in order to advance purposes of the Constitution Act, Section 6-A was inserted in Act II of 1992, whereby the office of Acting Chief Election Commissioner was created. Learned counsel has argued that a violation of express provision of Constitution Act has not been pointed out, rather it has been contended by the petitioners that the impugned Section 6-A is against the scheme of Constitution Act. So, in his view writ petition in the present shape is not maintainable.
Learned counsel has further stated that Humble Supreme Court in answer to Reference No,01/2015, has opined that matter of terms and conditions of Chief Election Commissioner is within the legislative competence of the Azad Jammu and Kashmir Legislative Assembly. It has further been stated that Act II of 1992, has been validated by the Supreme Court. So, it is prerogative of the Azad Jammu and Kashmir Government to move a summary for advice of Azad Jammu and Kashmir Council for appointment of Chief Election Commissioner. In this regard the President of Azad Jammu and Kashmir sent a panel for appointment of Chief Election Commissioner consisting of three names i,e, Mr. Justice (R) Sher Zaman Chaudhary, (2)
Mr. Justice (R) Basharat Sheikh and (3) Mr. Justice (R) Khawaja Shahad Ahmed. He further explained that name of Mr. Justice Ghulam Mustafa Mughal, was not included in the summary moved by the President of Azad Jammu and Kashmir, rather a perusal of advice of Chairman Kashmir Council dated 16-11-2015 shows that name of Mr. Justice Ghulam Mustafa Mughal, has been added in the panel proposed perhaps by the Council. The president of Azad Jammu and Kashmir diverted the attention of Chairman Kashmir Council to the fact that in accordance with the provisions of Act II of 1992, Government of Azad Jammu and Kashmir has the prerogative to move for appointment of Chief Election Commissioner. In this regard opinion of the Supreme Court in Reference No,1/2015 and Muhammad Younas Tahir's case [PLD 2012
(SC) AJ&K 42] was referred but instead of abiding by the dictum laid down by the Supreme Court of Azad Jammu and Kashmir, Hon'ble Chairman Kashmir Council sent advice for appointment of Mr. Justice Ghulam Mustafa Mughal, as Chief Election Commissioner.
Learned counsel has further stated that Mr. Justice Ghulam Mustafa Mughal, Chief Justice Azad Jammu and Kashmir High Court is a reliable name and his impartiality and capability is aboveboard. In this scenario the President of Azad Jammu and Kashmir consented to his appointment as Chief Election Commissioner and in order to abide by the provision of prevailing law, Mr. Justice Ghulam Mustafa Mughal was appointed as Acting Chief Election Commissioner under Section 6-A of the amended Ordinance No XIX of 2015. It has been contend that both the Council and the Government of Azad Jammu and Kashmir have consensus on appointment of Mr. Justice Ghulam Mustafa Mughal, as Chief Election Commissioner, however, the procedure of appointment adapted by the Council is objectionable. In order to abide by the provisions of Act II of 1992, Mr. Justice Ghulam Mustafa Mughal, has been appointed as acting Chief Election Commissioner after consultation with Chief justice of Azad Jammu and Kashmir. Learned counsel is of the opinion that an advice cannot be tendered in vacuum, rather advice can be given only if it is sought by the President of Azad Jammu and Kashmir. In this regard Muhammad Younas Tahir's case and dictum laid down in Reference No,1/2015, has been relied upon. Another objection of the learned counsel towards the procedure adapted by the Kashmir Council is that Rules of Business of Azad Jammu and Kashmir Council have been violated. Muhammad Irshad's case reported as [2007 SCR 419] has been relied, which says at page 424 as under:- "9. .....<i>Although in case in hand, the staff of the Prime Minister of Pakistan in his capacity as Chairman of Azad Jammu and Kashmir Council, is the Secretariat of Azad Jammu and Kashmir Council, and the approval should have been obtained through the Council Secretariat by any of the designated officers of the Council. However, the authorized officer submitted it directly to the Prime Minister Secretariat which is a departure from Rules of Business of AJ&K Council, as the matter in hand relates to the Council's employees and not the employees of Government of Pakistan. This is a failure at the level of Secretariat that the process is not conducted in accordance with the Rules of Business of Azad Jammu and Kashmir, not of the Auditor General in conducting the process in his capacity as authorized officer."</i>
13. The moot point in the instant case is that whether impugned Section 6-A of Ordinance XIX of 2015 is violative of Constitution Act and whether a Constitutional office can be created through subordinate legislation? We have heard the parties on this point at length, for proper appreciation Section 50 of the Interim Constitution Act, 1974, is reproduced as under:- "50.<i><b> Chief Election Commissioner</b> :- (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 sub -section (1) on the same terms and conditions of service as are applicable to him immediately before such commencement." </i> ' Section 6-A of the amended Ordinance XIX of 2015, whereby the office of Acting Chief Election Commissioner has been created, reads as under:- <b><i>"6-A. Acting Chief Election Commissioner.</b>- At any time when,-
(a) the office of Chief Election Commissioner is vacant or;
(b) the Chief Election Commissioner 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. "</b> As mentioned earlier the Constitution Act, 1974, does not contain a provision of Acting Chief Election Commissioner. Act II of 1992, was formed by the Legislative Assembly in furtherance of Section 50 of the Interim Constitution Act, 1974. As mentioned above Section 50(1) provides that terms and conditions of the office of Chief Election Commissioner may be prescribed. Obviously terms and conditions of office of Chief Election Commissioner may be prescribed through an act of the Assembly or, rules. The question arises that whether creation of office of Acting Chief Election Commissioner falls within the ambit of Act II of 1992. A perusal of Act II of 1992 transpires that Sections 4 and 5 of this Act relate to salary, allowances, privileges and terms of office of Chief Election Commissioner. So, in our view this Act is limited to terms and conditions of the office of Chief Election Commissioner. It may be mentioned here that the words "terms and conditions" have not been defined in Act II of 1992 or the amending Ordinance XIX of 2015. However, the words "terms and conditions" have been defined in Section 3 of Azad Jammu and Kashmir Civil Servants Act, 1976, which provides that the terms and conditions of service of a civil servant shall be as provided in this act and rules. All the succeeding sections from E Sections 4 to 21 relate to appointments, probation, confirmation, seniority, promotion, posting and transfers, termination of service, reversion, absorption of surplus civil servant, retirement from service, re-employment after retirement, conduct, efficiency and discipline, pay, leave, pension and gratuity, benevolent fund etc. fall within the definition of terms and conditions of civil servants. The rules relating to civil servants of the year 1977, like the Civil Servants Act does not contain any provision whereby a particular portfolio falls within the details of terms and conditions.
14. It may further be added here that Preamble of Act II of 1992 provides that it is an act to provide for law relating to the terms and conditions of the Chief Election Commissioner. In our considered view the office of Chief Election Commissioner could not be created by adding a provision in the Chief Election Commissioner (Terms and Conditions) Act 1992.
Learned counsel for petitioners while arguing on the point has placed reliance on [PLD 1960 SC (Pak) 105] and [PLD 1964 SC 17]. Although, the question of insertion of a Constitutional office through subordinate legislation was not under consideration of their lordships in the Supreme Court of Pakistan. However, in [PLD 1960 SC 105], it was held that "expression terms and conditions admissible to them before the 10th day of August 1955 must be understood in a narrow and limited sense to refer to concrete matters relating to actual service of the person concerned on the specified date." It was held in [PLD 1964 SC 17] that "in each of these cases, it was held that the guarantee as to "terms and conditions" enjoyed before the integration must to understood in narrow and limited sense so as to refer to concrete matters such as the actual post occupied, actual salary enjoyed and the same page of superannuation as before the integration.
15. While arguing the case on the principle of pari material learned counsel has referred to provision of Indian Constitution and Constitution of 1956, 1962 and 1973 of Pakistan and has further placed reliance on [PLD 1982 Lahore 69], [PLD 1983 Lahore 522], [PLD 2006 Lahore 661], [PLD 2003 Karachi 347] and [PLD 2010 SC 265]. It has further been stressed that while interpreting a statute, function of the Court is to discover true intent of the legislature. Court must try to interpret a after so doing. In this regard [PLD 2013 SC 279], [PLD 2007 SC 369], [PLD 2010 SC 483], [PLD 2012 SC 1089] have been relied upon. We need not to discuss the history of cited cases with the exception that Constitution of Pakistan 1973 provides the portfolio of Chief Election Commissioner in Article 213 and Article 217 provides the office of Acting Chief Election Commissioner for performance of functions. Article 217 CoP 1973, is reproduced as under:- <i>"217. At any time when:-- (a)the office of Commissioner is vacant, or
(b) the commissioner is absent or unable to perform the functions of his office due to any other cause, a Judge of the Supreme Court nominated by the Chief Justice of Pakistan shall act as Commissioner."</i> On the other hand the learned counsel appearing on behalf of the Azad Jammu and Kashmir Government and the President have stressed that insertion of Section 6-A in the Chief Election Commissioner (Terms and Conditions) Act 1992, is for advancing the purposes of Interim Constitution Act, 1974. They have placed reliance upon the following case law:-
(i) [PLD 1976 Lah. 834], (ii) [PLD 1976 Lah. 823], (iii) [PLD 1976 Lah. 1504], (iv) [2005 YLR 177], (v)
[PLD 1975 (SC) 667], (vi) [1976 SCMR 327], (vii) [2001 MLD 1969],(viii) [PLD 2003 Lah. 752], (ix)
[PLD 1965 SC 623], (x) PLD 1988 SC (AJ&K) 53], (xi) [PLD 1978 (SC) 139], (xii) [PLD 1978 (SC) 42],
(xiii) [PLD 1983 (SC) AJ&K 89], (xiv) [PLD 1979 (SC) 1939], (xv) [PLD 1953 Privy Council 51](sic),
(xvi) [PLD 1965 (SC) 120], (xvii) [PLD 1963 (Dhacca) 669], (xviii) [1994 SCR 341].
16. The above discussion leads us to the conclusion that office of Acting Chief Election Commissioner having the similar functions and status of permanent Chief Election Commissioner, cannot be created through subordinate legislation. We rely on the principle that lacuna in the Constitution cannot be made up by act of subordinate legislation.
17. Raja Muhammad Hanif Khan, Advocate on behalf of petitioners has come forward with another argument that if amending Section 6-A of Ordinance of 2015, is presumed for the sake of arguments in accordance with law and Constitution then appointment of Acting Chief Election Commissioner would be made on advice of Kashmir Council. He is of the view, that principle of law is that where the Constitution provides a criterion for a thing in one provision, then the criterion can be utilized doing for another thing of similar nature. He has placed reliance on [PLD 1996 SC 324] and [1992 MLD 2083] in this regard. This argument cannot concurred with for the reason that requirement of appointment of a regular Chief Election Commissioner and that of Acting Chief Election Commissioner is different. An Acting Chief Election Commissioner is appointed as a stop-gap-arrangement when the office of Chief Election Commissioner is vacant or the Chief Election Commissioner is unable to perform the functions of his office due to his absence, illness etc. We may take notice of the fact that office of Chief Election Commissioner is lying vacant since last nine months and correspondence between the Government of Azad Jammu and Kashmir and Council Secretariat could not result in regular appointment of Chief Election Commissioner. Mode of appointment of Chief Election Commissioner under Article 218 of Constitution of Pakistan and Section 6-A of amending Ordinance XIX of 2015 is synonymous which provides that Acting Chief Election Commissioner for Azad Jammu and Kashmir shall be appointed by the President in consultation with Chief Justice of Azad Jammu and Kashmir. Obviously the process of appointment of Acting Chief Election Commissioner has been shortened and such a stop-gap-arrangement can be managed on a short notice. So, the principle of law stated by the learned counsel cannot be applied to the appointment of Acting Chief Election Commissioner. It would suffice to state that Section 6-A of amending Ordinance XIX of 2015 would have been a good piece of legislation had it been provided through a mechanism of amending the Constitution Act.
18. Now the question arises that whether advice of Chairman Kashmir Council dated 16.11.2015, is binding on the President of Azad Jammu and Kashmir. It may be mentioned here that Prime Minister of Pakistan/Chairman Kashmir Council has advised the President of Azad Jammu and Kashmir to appoint Mr. Justice Ghulam Mustafa Mughal, as Chief Election Commissioner of Azad Jammu and Kashmir in addition to his own duties while relying on powers conferred on him under Sections 50 and 21(7) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with Sections 3 and 5 of the Chief Election Commissioner (Terms and Conditions) Act, 1992. As discussed earlier a summary consisting of the names of Mr. Justice (R) Sher Zaman Chaudhary, (2) Mr. Justice (R) Basharat Sheikh and (3) Mr. Justice
(R) Khawaja Shahad Ahmed was moved by the Secretary Law to the President of Azad Jammu and Kashmir. The President of the Azad Jammu and Kashmir sought advice from the Chairman Kashmir Council in accordance with provisions of Section 50 of the Interim Constitution Act, 1974. The Chairman Kashmir Council in response to the letter of President of Azad Jammu and Kashmir dated 30.11.2015, conveyed that Chairman Kashmir Council is vested with the legal right to issue advice to the President of Azad Jammu and Kashmir for appointment of Chief Election Commissioner under Section 50 of the Interim Constitution Act,; 1974 and other enabling provisions. It was further stated by the Azad Jammu and Kashmir Council Secretariat that advice of the Chairtrian is not limited by any panel suggested by the President Azad Jammu and Kashmir or Council Secretariat, which is only to facilitate him in the decision making process and that advice of the Chairman Azad Jammu and Kashmir Council given under express provisions of the Constitution is binding on the President. The Azad Jammu and Kashmir Council Secretariat further conveyed the President of Azad Jammu and Kashmir on 31-12-2015 that matter of advice of the Chairman Azad Jammu and Kashmir Council to the President of Azad Jammu and Kashmir has earlier been discussed and adjudicated upon by Azad Jammu and Kashmir High Court. The Secretary relied on the judgment of Full Bench of the High Court of Azad Jammu and Kashmir in petition No,24/2011, wherein it has been laid down that:- <i>"We are quite clear that no advice can be tendered against the express provisions of the Constitution and if an advice is tendered in accordance with law and provisions of the Constitution by the Azad Jammu and Kashmir Council or Government, the same shall be binding on the President and contravention thereof is liable to be struck off by the Courts".</i> ' It may be refreshed that Azad Jammu and Kashmir Council Secretariat proposed the name of Mr. Justice Ghulam Mustafa Mughal for the slot of Chief Election Commissioner and the Chairman Azad Jammu and Kashmir Council was pleased to advise the President of Azad Jammu and Kashmir to appoint him as such. After taking into consideration the arguments advanced at bar, we are of the opinion that an advice cannot be tendered in vacuum rather it may be given when sought by the competent forum. It may be observed here that under Section 50(1) of the Constitution Act, Chief Election Commissioner is appointed by President on the advice of the Council. Likewise under Section 43(2)(a) a Judge of the High Court is appointed by the President on the advice of the Council, however, consultation of the Chief Justice of Azad Jammu and Kashmir and Chief Justice of Azad Jammu and Kashmir High Court has further been provided. A synonymous provision for appointment of Acting Chief Justice under section 43-A has been provided which states that the President shall appoint the Senior most Judge of the High Court to act as Chief Justice when the office of Chief Justice of the High Court is vacant or he is absent or unable to perform functions. Judges of the Supreme Court are also appointed by the President on advice of the Azad Jammu and Kashmir Council. So, powers conferred on the President for appointment of Judges of the Supreme Court, High Court and Chief Election Commissioner are subject to advice by the Azad Jammu and Kashmir Council. In Reference No,1/2015 Humble Supreme Court of Azad Jammu and Kashmir discussed the matter of advice by the Council II and laid down as under:- <i>"Here it may be observed that the advice cannot be issued on its own or in vacuum. The advice can be issued whenever the appointing authority seeks the advice. This Court in the case reported as Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate Muzaffarabad and others [PLD 2012 SC (AJ&K) 42] has observed as under: "33. The phraseology employed in section 43(2-A) of the Act, 1974 when analyzed in the light of referred authorities, denotes that before issuing the appointment order, the President has to consult the two Chief Justices and seek advice from the Council........
' In the referred case it was further 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."</i> It may be refreshed here that the Supreme Court concluded theafore cited opinion in the matter of appointment of Chief Election Commissioner. So, the argument that opinion of the Supreme Court relates to advice in relation to appoint of Judges of the High Court, is invalid.
Therefore, we summarize that the President of Azad Jammu and Kashmir moved names of three retired Judges for appointment of Chief Election Commissioner, which was not assented to by the Chairman Kashmir Council, rather the Azad Jammu and Kashmir Council Secretariat added another name of Mr. Justice Ghulam Mustafa Mughal, Chief Justice Azad Jammu and Kashmir High Court in the panel, whereupon the Chairman Kashmir Council was pleased to advise the President of Azad Jammu and Kashmir to appoint him as Chief Election Commissioner. The Azad Jammu and Kashmir Council Secretariat relied in this behalf on a judgment of the High Court in Writ Petition No,24/2011 and concluded that the Chairman Kashmir Council is vested with the unfettered powers of tendering advice to the President under Section 50(1) of Interim Constitution Act, 1974 and enabling sections for appointment of a particular person as Chief Election Commissioner. A perusal of relevant paragraph reproduced by the Azad Jammu and Kashmir Council Secretariat in its letter dated 31.12.2015 transpires that no advice can be tendered against the express provisions of the Constitution and if an advice is tendered in accordance with the constitution, it is binding on the President. On the one hand the cited judgment does not provide mode of seeking or tendering advice and on the other hand if it is presumed that advice in the case at hand has been tendered under Section 50(1) of the Constitution Act, it is found in violation of dictum laid down by the Supreme Court of Azad Jammu and Kashmir in Reference No,1/2015. As mentioned earlier, the Supreme Court has held that an advice cannot be given in vacuum, rather it is to be tendered when sought by the President. The President of Azad Jammu and Kashmir sought advice of Chairman Azad Jammu and Kashmir Council for appointment of Chief Election Commissioner out of three proposed names. The summary forwarded by the President was not considered and an alternate name was added. So, the President was advised to appoint a person who was not included in the panel. In our view, dictum of the Supreme Court is binding on the High Court as well as all the other Courts under Section 42-B of the Constitution Act, which reads a under:- <i>"Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Azad Jammu and Kashmir"</i> ' In Reference No,1/2015 the Supreme Court laid down a principle of law that an advice cannot be tendered on its own or in vacuum, rather it can be tendered when it is sought for by the President. So, advice of the Chairman Azad Jammu and Kashmir Council dated 16.11.2015, is found to be violate of Section 50(1) of the Interim Constitution Act, 1974.
19. It is, therefore, concluded that office of Acting Chief Election Commissioner can be created, through Constitutional amendment and by no other means. The Government of Azad Jammu and Kashmir may introduce a bill for amendment in the Constitution Act in this regard. So for as appointment of Chief Election Commissioner on regular basis is concerned, advice tendered by the Chairman Azad Jammu and Kashmir Council dated 16.11.2015, could have a binding effect on the President, had it been tendered on the summary moved by the President. It is pertinent to mention here that Government of Azad Jammu and Kashmir and Azad Jammu and Kashmir Council are in agreement for appointment of Mr. Justice Ghulam Mustafa Mughal Chief Justice of High Court Azad Jammu and Kashmir as Chief Election Commissioner. It is also relevant to mention here that Chief Election Commissioner under Article 213 of Cop 1973, is appointed by the President of Pakistan under a certain procedure.
However, extract of the procedure is that Prime Minister of Pakistan has to consult with the leader of opposition in the National Assembly and has to forward three names for appointment of Chief Election Commissioner to a Parliamentary Committee. A comparison of Articles 213 and 217 of Constitution of Pakistan 1973, leads to the conclusion that if the office of Chief Election Commissioner is required to be filled in on temporary basis, a serving Judge of the Supreme Court is appointed as Acting Chief Election Commissioner nominated by the Chief Justice of Pakistan, whereas a process of consultation between the Prime Minister and Leader of Opposition has been provided for appointment of regular Chief Election Commissioner under Article 213. In the same manner under Section 50(1) of the Interim Constitution Act, 1974, provision for appointment of Chief Election Commissioner has been added. It would not be out of place to mention here that although eligibility of appointment of regular Chief Election Commissioner provided in Section 50(1) includes a serving Judge of the High Court but we are conscious of the fact that the High Court is already short of two Judges and Judges of the High Court are entrusted with the additional responsibilities of Shariat Court as well. It is, therefore, expected that this aspect of the matter would be kept into consideration while preparing a summary for appointment of new Chief Election Commissioner.
20. It is also pertinent to mention here that prime function of Chief Election Commissioner is to conduct free and fair election to Legislative Assembly. So, all the political parties are stake holders in the process of election. It hardly needs to mention that parliamentary parties are represented in the Assembly by Leader of the House and Leader of the Opposition. In such a scenario, appointment of Chief Election Commissioner, after consultation with the Leader of Opposition gains more importance.
21. We are aware of the importance of urgent appointment of Chief Election Commissioner, in the scenario of general election to the Legislative Assembly which is due within four or five months and a lot of work is to be disbursed by the next Chief Election Commissioner. It is, therefore, observed that a panel of suitable candidates in the aforementioned manner be sent for seeking advice of Chairman Kashmir Council within a week.
' Nutshell of the above discussion is that the writ petition is accepted, as a result whereof Ordinance No, XIX of 2015 dated 22-10-2015 to the extent of section 6-A is set aside being violate of Interim Constitution Act, 1974. Notification dated 29-12-2015 is also set aside for the reasons discussed herein above.