' CH. MUHAMMAD IBRAHIM ZIA, J.---The captioned appeals have been directed against the judgment and decree of the High Court dated 8.10.2004, whereby through a consolidated judgment, the appeals filed by the respondents herein were accepted and the judgments and decrees passed by the Banking Court, Rawalpindi on 15.1.2001 were set aside. Having involved common question of law and facts, we propose to dispose of the appeals, through this consolidated judgment.
2. Brief facts forming the background of these appeals are that a suit for recovery of Rs, 15,890,633- 10/- was filed by the appellant-Bank, the Banking Court, Rawalpindi against the respondents. The respondents moved an application for permission to defend the case on 13.11.1999. Another application was also moved with some additional grounds by the respondents on 17.12.1999. The Banking Court, Rawalpindi dismissed the applications and decreed the suit filed by the appellant- Bank for recovery of Rs, 15,890 633-10/- jointly and severally with costs and markup at the prescribed rate from the date of institution of the suit till realization of the whole amount. The respondents challenged the decree of Banking Court, Rawalpindi through separate appeals in the High Court. The learned High Court accepted both the appeals and set aside the judgment and decree of Banking Court, Rawalpindi through the impugned judgment and decree, hence, this appeal.
3. Haji Ch. Muhammad Afzal, Advocate, the learned counsel for the appellant in both the appeals, after discussion of necessary facts, submitted that the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997) (hereinafter to be referred as Act, 1997), has been validly adapted by the Azad Jammu and Kashmir Council (hereinafter to be referred as AJ&K Council), vide the Azad Jammu and Kashmir Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1998, (II of 1998). Under subsection (2) of section 2 of the adaptation Act, the Azad Jammu and Kashmir Council has been authorized either to establish the Banking Court in the Azad Jammu and Kashmir under this Act or authorize any other Banking Court established in Pakistan under the said Act to exercise the powers of Banking Court under this Act. He further submitted that the principle of law enunciated in Messrs Jabeer Hotel's case, [2001 PLC (C. S.) 11], is not applicable to the case in hand because in that case competency of the executive authority was in question. He argued that there is a lot of difference to extend the executive authority to exercise its powers and confer jurisdiction upon the Court. In the case in hand, under the adaptation Act, AJ&K Council has validly authorized the Banking Court, Rawalpindi, established by the Federal Government to exercise the powers of Banking Court for the territories of the Azad Jammu and Kashmir. He further submitted that the respondents appeared before the Banking Court, Rawalpindi, hence, they are debarred to raise the question of the jurisdiction of the Banking Court. He further submitted that the appeals are time barred. In support of his arguments he placed reliance upon the cases reported as Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab [AIR 1955 SC 549], McCarthy and Stone (Developments) Ltd. v. London Borough of Richmond Upon Thames [1994 PTD 1324], Muhammad Nazir Khan v. Azad Government and 4 others [2001 YLR 3271], Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others [PLD 1985 SC(AJ&K) 102], Kh. Ghulam. Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others [1996 SCR 161], Dr. Mehmood Hussain Kiani v. Azad Government and 26 others [1996 PLC(C. S.) 912], Vice Chancellor and 3 others v. Muhammad Shahzad Khalid [PLD 2001 SC(AJ&K) 21], Khan Iftikhar Hussain Khan of Mamdot (represented by 6 others) v. Messrs. Ghulam Nabi Corporation Ltd., Lahore [PLD. 1971 Supreme Court 550], Abdul Karim and 2 others v. Messrs United Bank Ltd. of Pakistan [PLD 1997 Karachi 62], Mian Manzoor Ahmed Wattoo v. Federation of Pakistan and 3 others [PLD 1997 Lah. 38], The Commissioner Income Tax and others v. Messrs Saeed Motors Mirpur, (Civil Appeal No, 88/2002, decided on 1.7.2003) and finally submitted that the impugned judgment of the High Court suffers from material illegality, hence, is not maintainable, therefore, the same is liable to be recalled.
4. Conversely, while refuting the arguments of counsel for the appellant, Mr. M. Reaz Alam and Ch., Jehandad Khan, Advocates, the learned counsel for respondents, vehemently defended the impugned judgment on the ground that the respondents have categorically raised the question of jurisdiction before the Banking Court, hence, it is not correct that they are debarred from raising the objection regarding the competence of the Banking Court. They further submitted that the. Azad Jammu and Kashmir Territory is not included in the territory of Pakistan. The State of Azad Jammu and Kashmir has its own special entity and institutions are established under the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The legislative as well as executive powers and its extent has been clearly demarcated by the constitutional provisions. The Azad Jammu and Kashmir Legislative Assembly and AJ&K Council can only legislate regarding the subjects which falls within their domain under the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Act, 1974). Neither the Act, 1974 authorizes the Government, AJ&K Legislative Assembly nor the AJ&K Council to legislate regarding the authorities and institutions which are not falling within the executive control and competence of AJ&K (established by the Government of Pakistan under the Constitution of Islamic Republic of Pakistan, 1973). They submitted that on this legal proposition, this Court has already handed down an authoritative judgment in Messrs Jabeer Hotel's case [2001 PLC (C.S.) 111 and the principle of law enunciated in that case is fully attracted in this case thus, the High Court has rightly set-aside the judgment and decree passed incompetently by the Banking Court, Rawalpindi.
5. We have paid our utmost attention to the respective arguments advanced by the learned counsel for the parties and also gone through the record. Needless to discuss the merits of the case as the High Court has accepted the appeals filed by the respondents on the sole ground of jurisdiction of the Banking Court. Thus, the only moot point which requires deliberation is whether the Banking Court established by the Federal Government of Pakistan can be legally authorized to extend its jurisdiction and exercise the powers of Banking Court for the territories of Azad Jammu and Kashmir. Undoubtedly, the Banking Court, Rawalpindi was neither established by the AJ&K Council or the AJ&K Government nor it is creature of the laws made by the Legislative Assembly or the AJ&K Council. Obviously, the AJ&K Government and AJ&K Council has no lawful authority to control or exercise powers in relation to the Banking Court, Rawalpindi, established by the Federal Government. Before dilating upon the moot point in detail, let us first resolve the question of limitation and maintainability of appeal before the High Court.
6. The argument of the learned counsel for the appellant that the respondents are debarred to question the jurisdictional competence of the Banking Court as they joined the proceedings, require consideration. The Banking Court, Rawalpindi, in its judgment has categorically brought 'on record the objection of the defendant-respondents regarding jurisdiction in the following words:- "Lastly learned counsel for the defendant vehemently argued that the Act XV of 1997 extends to whole of Pakistan and not to AJK. It is pointed out that parties are residing at AJK, therefore, this court lacks jurisdiction to adjudicate the matter in issue. It is argued that AJK has got its own independent set up and the present suit is not maintainable before this Court. Certain provisions of AJK Interim Constitution Act, were also referred in this context. With these submissions learned counsel for defendants petitioners urged that it is a fit case for grant of leave to defend the suit."
Thus, it is clear that question of jurisdiction has been raised by the defendant-respondents in the Banking Court. Thus, the objection of appellant has no substance.
7. Even otherwise according to the celebrated principle of law, there is no estoppel against law.
Neither by joining the proceedings by A the parties, jurisdiction is conferred upon the Courts nor the Courts can be created without law made under the Constitutional provisions. This Court in the case reported as Muhammad Suleman and another v. Javed lqbal and others [PLD 1982 SC(AJ&K) 64] while dealing with the identical proposition has observed as under:- "38. It is settled that the principle of estoppel cannot be allowed to defeat the provisions of a statute or enactment which affects the jurisdiction of a Court. A party cannot, by its admission or previous conduct, confer jurisdiction on a Court where none exists. The doctrine of approbate and reprobate, or consent or waiver, which would apply to the conduct of the parties, is not applicable to the case of a statute or an order passed without jurisdiction; and when there is a complete lack of jurisdiction, no consent or acquiescence can cure the illegality. An order which is not an order of a Court of competent jurisdiction can never be pleaded as an estoppel."
' Thus, the argument stands repelled.
8. The objection of learned counsel for the appellant regarding limitation for filing appeals by the respondents before the High Court has been properly attended. Under the provision of section 21 of the Act, 1997, a person aggrieved by a decree or order of Banking Court, within thirty days, can prefer an appeal before the High Court. According to the provision of subsection (4) of section 2 of the Adaptation Act, 1998, the High Court, under the said Act has to be construed to refer to the Azad Jammu and Kashmir High Court. Moreover, under the provisions of section 22 of the Act, 1997 made the Limitation Act, 1908 applicable to the proceedings under the said Act.
9. Appeal No,7/2001 against the judgment and decree dated 15.1.2001 has been filed on 27.2.2001. In paragraph 6 of the memo of appeal, it has been categorically asserted that the application for issuance of certified copies was submitted on 15.1.2001 which have been issued on 3.2 2001. Thus, excluding the time spent for obtaining the required certified copies, the appeal is within time. Under the provisions of Limitation Act, it is the statutory right of a party that for computation of limitation, the time consumed in obtaining certified copies shall be deducted. Thus, the appeal is filed within time.
10.The other Appeal No, 21/2001 has been filed on 17.4.2001 against the judgment and decree passed on 15.1.2.001. The appellants categorically asserted in para 12 of the memo of appeal that they got knowledge of the decree on 21.3.2001 and from the date of knowledge, the appeal is within time. They have also submitted a separate application for condonation of delay under section 5 of the Limitation Act which is supported by an affidavit. In the application they have categorically asserted that before 21.3.2001, neither any notice was served upon them nor they have got knowledge of the decree and decision. The contents of application have not been refuted by the other party. The affidavits submitted by the respondents on this specific factual assertion also remained un-rebutted. Thus, the High Court has treated the appeal within limitation. Therefore, in our view the objection regarding limitation of appeals before the High Court has no substance and stands repelled.
11.Now let us deal with the vital legal proposition of authority of the Banking Court. On this vital legal point, the principle of law laid down by this Court in Messrs Jabeer Hotel's case, [2001 PLC (S. C.) 11] is much relevant. It will be useful to reproduce here the relevant portion of the judgment, which reads as under:- "20. Unlike Azad Jammu and Kashmir Council, the Legislative Assembly does not have any executive powers. The Azad Government' of the State of Jammu and Kashmir enjoys executive powers in respect of the subjects which are within the legislative competence of the Assembly. It is provided in section 19 of the Constitution Act as follows:- '19. Extent of executive authority of Government.--- (1)Subject to this Act, the executive authority of the Government shall extend to the matters with respect to which the Assembly has power to make laws, (2)
(a).....
(b) (3) Notwithstanding anything contained in this Act, the Government may, with the consent of the Council, entrust, either conditionally or unconditionally, to the Council, or to its officers functions in relation to any matter to which the executive authority of the Government extends.
21.It is provided in section 12 tilt executive authority of Azad Jammu and Kashmir shall be exercised by the government consisting of the Prime Minister and the Ministers. Subsection (5) lays down as follows:- '(5). The Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it.'
22.It is clear from the provisions noticed above that the executive authority of the Council and the Government can be delegated to officers and authorities subordinate to them. The Interim Constitution Act does not postulate that executive authority of Azad Jammu and Kashmir Council will be exercised by the functionaries or officers of the Government of Pakistan although the Prime Minister of Pakistan is the Chairman of the Council. It is equally clear that while performing functions as Chairman of the Council the Prime Minister of Pakistan cannot delegate any functions of the Council to an officer or authority in the Government of Pakistan although they are subordinate to him as Prime Minister.
23.According to the Constitution of Pakistan of 1973 and Azad Jammu and Kashmir Interim Constitution Act, 1974, Azad Jammu and Kashmir is not a part of Pakistan and laws of Pakistan are not applicable to the liberated territory of Jammu and Kashmir. Thus the functionaries appointed under a particular law which is in force in Pakistan do not have the jurisdiction to function in Azad Jammu and Kashmir. It is provided in subsection (4) that the Federal Government shall establish an Institution called the Employees Old-Age Benefit Institution which shall be a body corporate. The Employees Old-Age Benefit Act, 1976 contains a provision in subsection (2) of section 1 that the said Act was to extend to the whole of Pakistan. The Act does not visualize that it will perform functions in Azad Jammu and Kashmir. Section 7 lays down that there will be a number of trustees appointed by the Government and that four members shall be those who have been nominated by the Provincial Governments. There is no mention that it will also have a member from Azad Jammu and Kashmir. It is thus clear that the EOB Institution is performing functions in connection with the Federation. It is set up by the Federal Government and is under its control. The functions which it performs are entrusted to it by the Federal Legislature and the Federal Government. Clearly it is not a functionary subordinate to the Azad Jammu and Kashmir Council. It follows that Azad Jammu and Kashmir Council could not delegate its functions to the said Institution.
24. In fact the constitutional position is that the Azad Jammu and Kashmir Council and the Azad Jammu and Kashmir Legislative Assembly are not empowered to legislate in respect of officers of the EOB Institution. Legislative powers of the Council and the Assembly are laid down in section 31.
Subsection (1) is relevant here.
'31 Legislative Powers.---Subject to the succeeding provisions of this Section, both the Council and the Assembly shall have the power to make laws- (a)for the territories of Azad Jammu and Kashmir; (b)for all State subjects wherever they may be; and (c)for all officers of the Council or as the case may be the Government, wherever they may be.'
25 This provision manifestly lays down that the powers to make laws outside Azad Jammu and Kashmir is restricted only to State subjects wherever they may be and to officers of the council and of the Government wherever they may be. The officers of the EOB Institution are not officers of the Council or the Government. Therefore, the Council or the Assembly cannot legislate for them. It means in other words that law cannot be framed so as to confer powers or functions on the employees of the EOB Institution by the Legislative bodies of Azad Jammu and Kashmir.
26. It follows that the Azad Jammu and Kashmir Employees Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act, 1980 (Act X of 1980) was not competently enacted by the Azad Jammu and Kashmir Council and was therefore void from its inception. The Azad Jammu and Kashmir Council (Validation of Laws) Act, 1995 also suffered from the same illegality so far as it purported to validate Act X of 1980. Consequently, Act X of 1980 as well as the provisions in the aforesaid Validation Act relating to Act X of 1980 are struck down for want of legislative competence. The result is that all actions taken and orders passed by the EOB Institution in respect of Jabeer Hotel and steps/actions taken by the functionaries in Azad Jammu and Kashmir under direction of the EOB Institution were also without lawful authority and of no legal effect."
12. In the present case, vide notification No,L-1/2/97-AJKC, dated 14th May, 1998, the Banking Court established by the Federal Government at Rawalpindi has been authorized and vested with the powers to try the cases relating to the territories of Azad Jammu and Kashmir. There is no dispute regarding factual aspect that the Court so authorized was neither established by the Azad Jammu and Kashmir Government or Council nor the same was in the control of AJ&K Govt. or Council. Thus, the legal and factual proposition involved in, this case is fully identical to the proposition involved in Messrs Jabeer Hotel's case referred to hereinabove. The Court has in the referred case declared such conferment of powers on the authority or person who is neither established nor controlled by the Government of Azad Jammu and Kashmir or Council, as void. Although in this case, specifically the vires of the Adaptation Act, 1998 have not been challenged by the respondents but they have categorically raised the question of jurisdiction before the Banking Court, Rawalpindi.
13. According to the previous pronouncements of the superior Courts even without challenging the vires of any law, if it comes to the notice of the Court that any piece of legislation is lacking the Constitutional backing or is promulgated without Constitutional competence, the same has to be declared ultra vires or ignored. This Court in a case reported as The State v. Sh. Manzar Masud [1981 PCr.LJ 6611, the Ordinance which was promulgated without advice of the Prime Minister, declared the same as ultra vires and non-enforceable. It will be useful to reproduce here the relevant portion of the judgment which speaks as under:- "34. But, as contended, it needs determination whether 1978 Ordinance, which makes the receipt of T.A and D.A by the accused, an offence, could legally be enacted by the President Azad Kashmir.
' Let us now examine law making powers of the Assembly and the Council under the provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as the Constitution Act). Section 31 of the Constitution Act defines the powers of the Legislative Assembly.
The relevant provisions for the decision of the issue before me are:- '31. Legislative Powers.---(1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws- (a)for the territories of Azad Jammu and Kashmir; (b)for all State Subjects wherever they may be; and (c)for all officers of the Council or, as the case may be, the Government, wherever they may be.
(2) Subject to subsection (3),-- (a)the Council shall have exclusive powers to make laws with respect to any matter in the Council Legislative List set out in the third schedule, hereinafter be referred to as the Council Legislative List; and (b)the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative List.'
35.The plain reading of subsection (2)(a) makes it clear that on the matters enumerated in third schedule, the Council alone has exclusive powers to make laws and the Assembly or the President is incompetent to legislate on such subject through an Act or an Ordinance. Sub-clause (b) of subsection (2) gives power to the Assembly to legislate on all other matters not set forth in the Council Legislative List.
36.So far Ordinances are concerned, under the provisions of section 41(1) of the Constitution Act, the President, in matters in respect of which the Assembly is competent to legislate, is competent to make and promulgate an Ordinance. Ordinance in respect of the Council Subjects are also dealt with under section 41 of the Constitution Act. Under Sub-clause (4) of section 41 of the Constitution Act, the President in respect of Council subjects enumerated in the Council Legislative List, when the Council is not in sessions, can validly, on the advice of the Chairman of the Council promulgate the Ordinance, in respect of any matter which can be enacted by the Council and an Ordinance so promulgated is said an Act of the Council.
37.It is thus manifest that it is very much in the competence of the President to promulgate an Ordinance in respect of all matters on which the Assembly and the Council are authorized to legislate, of course, subject to the condition set out under section 41 of the Constitution. On the matters within legislative competence of the Assembly, an Ordinance can be promulgated by the President on the advice of the Prime Minister while in respect of all matters listed in the Council Legislative List (third schedule), the President, to make and promulgate an Ordinance, gets legal sanction on the advice of the Chairman of the Council. Thus for a valid Ordinance, on any of the subject of the Council to be made by the President, the advice of the Chairman of the Council is a condition precedent and if it is not there, the Ordinance so made will be ultra vires of the powers of the President.
38. The question to be answered is as to whether the President had the power to promulgate the Ordinance in question in respect of T.A and D.A. of the Advisors of the Council. Matters exclusively within the Council Legislative powers are dealt with in the third schedule of the Constitution Act which is termed as 'Council Legislative List'. The subjects are divergent in nature but relevant to the present issue are subjects dealt under serial Nos. 26, 48 and 49 of the list which may with advantage be reproduced:- '26. The salaries, allowances and privileges of the members of the Council and Advisors.
48.Jurisdiction and powers of all Courts with respect to any of the matters enumerated in this list.
49.Offences against laws with respect to any of the matters enumerated in this list.'
39. <u>It is thus, manifest that the President Azad Jammu and Kashmir was not empowered to legislate and create offences against laws with respect to any of the matters enumerated in this list.</u> The salaries, allowances and privileges of the Advisors under serial No, 26 is the exclusive subject of the Council and under serial No, 49 offences in respect of T.A and D.A. of the Advisors can only be legislated upon by the Council and not the President.
40. <u>In view of the above, I hold that the Ordinance is ultra vires of the powers of the President and for that reason the accused cannot be convicted on the basis of an invalid law.</u> ' To satisfy myself as to whether the Ordinance was promulgated on the advice of the Chairman of the Council, I have sent for the original file which was produced before me by Syed Akram Shah Deputy Secretary Law. The file shows that the Ordinance was not promulgated on the advice of the Chairman."
(underlining is ours) ' Same like in the case titled Manzar Masud Sheikh v. Chief Secretary, Azad Government of the State of Jammu and Kashmir, Muzaffarabad, [1998 CLC 2966], the Ordinance promulgated without advice of the Chairman, AJ&K Council was declared as void. Para 8 of the judgment is relevant which is reproduced below:- "8. Now the next question arises is as to whether after leaving the office of Speaker, he held any other office which could be termed as representative office within the meaning of the relevant definition given in the Ordinance. The findings of the Tribunal or that he committed misconduct because he retained the official car when he was Member of the Azad Jammu and Kashmir Legislative Assembly and was Advisor to the Azad Jammu and Kashmir Council. We have asked the learned counsel for the respondent to show us from the record that after the relinquishment of the office of the Speaker, the appellant still remained the member of the Legislative Assembly.
Whether after vacating the office as Speaker the appellant remained the Member of the Azad Jammu and Kashmir Legislative Assembly, is a question of fact and was to be proved by some tangible evidence. There is not an iota of evidence on the record to substantiate the contention that the appellant had enjoyed the status of Member of the Azad Jammu and Kashmir Legislative Assembly during the relevant period when he retained the official car without any legal justification. So far as the office of Advisor to the Council is concerned, in view of the provisions of section 31(2)(a) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with schedule third to the said Act, only the Council had the power to legislate with regard to the matters concerning its Advisors and as such the Ordinance in question, so far as it related to the conduct of the Advisor or for that matter the appellant could be only promulgated by the President of the Azad Jammu and Kashmir on the advice of the Chairman of the Council and not otherwise. It is not controverted that the Ordinance in question so far it related to the matters relating to Advisor to the Council was not promulgated on the advice of the Chairman of the Council. <u>Thus, we have no hesitation in holding that the Ordinance, so far as it related to the conduct of Advisors to the council being violative of the Constitution Act, 1974, is void and no charge could be sustained against the accused appellant in that capacity.</u> It follows from what has been stated above that charge No, (i), listed above has not been brought home against the appellant."
14. This legal proposition once again has been discussed in detail by the learned High Court in the case reported as Robkar Adalat v. Sarfraz Alam Assistant Town Planner Mirpur Dev. Authority, Mirpur [1995 CLC 1857] wherein it has been held that when the Courts are confronted with such piece of legislation which is lacking the Constitutional backing or the legislative competence, the same be declared void or ignored. Relevant part of the judgment is reproduced below:- "51. The superior Courts are the Courts of record and by virtue of being the Courts of record, are Under constitutional obligation to go into the constitutionality of law or any provision thereof, if it comes into conflict with the substantive provisions of Constitution whether conflicting with the fundamental rights or coming into the way of any other provision of the Constitution. It becomes duty of the superior judiciary to strike down the law when it conflicts with the Constitution, notwithstanding the fact as to whether that law is challenged by way of a regular petition or crops up in any proceedings connected with the subject. Being the Courts of record, the superior Courts are at liberty, rather under obligation of the Constitution to determine the extent of their jurisdiction vested under the Constitution and law; and construe strictly the provisions ousting the jurisdiction.
When it is done, it is not a case of Court interfering with the power of any other institution, it is rather a case of the Courts carrying out their constitutional obligation and interference into executive or legislative power is just incidental. As against the power/jurisdiction vested in the Supreme Court and High Court under the relevant Clauses of sections 42 and 44 of the Constitution respectively, which is subject to other provisions of the Constitution, the power of the Courts under section 45 of the Constitution is the unqualified constitutional power vested in the Constitutional authority and power to such authority comes from Constitution itself. No law making body created by the Constitution each, therefore, limit the powers which are above the law. The superior Courts are the Courts of justice while exercising the powers vested by the Constitution (as against the appellate powers vested by any subordinate legislation where these courts may be termed as Courts of law).
The Courts of justice have to care more for justice and upholding the Constitutional mandate, than for law or any rule. When a law or rule becomes an impediment in dispensation of justice, the Supreme Court and High Court exercising the powers under sections 42, 44 or 45 of the Constitution, as the case may be, will ignore the law made by law making agency or strike it down, if need be.
52.The learned Judge framing the proposition, becoming cognizant of the ultra vires of the provisions of Contempt Act, while taking notice of the failure of the contemnor to submit the report, which in his view, constituted sufficient grounds for believing that the concerned officers have committed contempt of the Court, rightly noticed the ultra vires of the provisions of the Contempt Act. The determination of the constitutionality of the Act, therefore, became essential and relevant in the matter along with the determination of the culpability of the contemnor.
53.The superior Courts in Azad Jammu and Kashmir have never shrunk their responsibility and power in declaring the laws as unconstitutional, which glaringly were found running against the Constitution, when the question arose before them in the connected matters pending before them; and the law is now almost settled, that unconstitutional law must be struck off by the superior Courts whenever and wherever noticed. The Supreme Court of Azad Jammu and Kashmir in the case of Chief Secretary/Referring Authority Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC(AJ&K) 95 has held as follows:- 'Let us now see as to which is the authority responsible for the proper implementation and showing regard to the concept of such a law. It may be stated here that in every civilized society, constitutional guarantee of the due process of law and at the same time existence of judicial machinery to enforce the guarantees or regarded as the most cherished and effective safeguard for the enforcement of the rule of law especially the law which covers the fundamental rights of the citizens. The superior judiciary is always and very rightly expected to be vigilant to see that the fundamental rights and in fact every right enshrined in the Constitution are not violated and the Legislature functions within its defined legal bounds. When a question arises whether the prescribed limits have been exceeded, the court must, as of necessity, determine the question and the only way in which it can properly do so is by looking to the terms of the Constitution by which affirmatively the Legislative powers are restricted. If the impugned act of the Legislature is within the competence of the Assembly and it violates no express condition or restriction imposed by the Constitution, it will not be for the Court to enquire any further but, if the act violates any Constitutional restriction or limits, it is invalid and the Court, being the custodian and protector of the Constitution is under an obligation to strike it down. This is especially true, as said elsewhere, as regards the Fundamental Rights to which the superior Courts have been assigned the role of a sentinel. We are supported in our view in "Azad Government of the State of Jammu and Kashmir v.
Kashmir Timber Corporation" [PLD 1979 SC(AJ&K) 1391. It has been observed in that case at page 41: 'There are no sovereign rights in the legislature to impose their will, as to be superior to these rights.
The essence of a written Constitution is that it defines and regulates the powers of different organs of the State by imposing limitations on the exercise of the authority by them, and if there be a conflict between the Constitution and a sub-constitutional law or the ordinary law, the latter must yield to the former which must govern the decision in a particular case.'
54.After discussing the several authorities of the Sub-Continent, it is held in paras 23 and 24 of the above referred case by the Supreme Court of Azad Jammu and Kashmir as:- '23. The sum total of our above discussion is that it is the duty of the Superior Courts to see that the legislature works within its limits and if it fails to keep itself within its own constitutional limits, the judiciary would step into enforce compliance with the Constitution. This is no doubt a delicate task which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitations imposed upon them or when they claim to exercise power which the Constitution has been careful to withhold from them.'
24. Our Legislature or the Government, which functions as law-making body in absence of the Assembly, it admits of no doubt, has powers limited by the Constitutional Act, 1974 which created it and it can do nothing beyond the limits which circumscribed these powers. If the Government or any law making body, therefore, travels beyond its sphere and takes steps to legislate on a matters not within its power or legislates in contravention of the Constitution, such a legislation is void ab initio and is necessarily to be recalled.'
55.In Giasul Haq v. Azad Government and others (PLD 1980 SC(AJ&K) 5), it was held that a Tribunal or Court competent to decide a matter is competent to decide all matters incidental or ancillary thereto, if its jurisdiction is not otherwise barred. In Azad Government of Jammu and Kashmir v.
Muhammad Aslam (PLD 1981 SC(AJ&K) 71), it is held that superior Courts can go into the vires of statue and strike down the law if against Constitution. Similar was held in the case reported as The State v. Munzar Masood (1981 PCr.LJ 661). In Jammu and Kashmir Tehrik Amal Party v. Azad Government of the State of Jammu and Kashmir (PLD 1985 AJ&K 95), it is held that it is only domain of the superior judiciary to judicially review the scope of ultra vires of subordinate legislation. There is no dearth of other authorities on this proposition from Azad Jammu and Kashmir jurisdiction and from Pakistan as well. From Pakistan jurisdiction (PLD 1964 SC 673 and PLD 1973 SC 49) are the leading authorities on the subject and PLD 1992 Federal Shariat Court 445 is Sharia' view of the law, holding that jurisdiction conferred by the specific provision of the Constitution cannot be interfered with by means of any ordinary law.
56. The Supreme Court of Azad Jammu and Kashmir has in the following cases struck off the law as unconstitutional under its constitutional powers, which in its wisdom was found against the Constitution, though the law was not challenged in a regular proceedings, but was noticed by the Court during the connected proceedings. Nisar Ahmed v. The State and Muhammad Khurshid v.
The State (PLD 1982 SC(AJ&K) 16), Referring Authority/Chief Secretary Azad Govt. of Jammu and Kashmir v. Sardar Muhammad Abdul Qayyum Khan" PLD 1983 SC(AJ&K) 95; Referring Authority Chief Secretary of Azad Government v. Sardar Sikandar Hayat Khan (PLD 1982 SC(AJ&K) 112)."
15 In this perspective, the legal proposition which emerges is that when this Court had declared any Act or piece of legislation as void, will it be operative for all the other identical cases and what is the constitutional status of such like principle of law enunciated by this Court. For this purpose, we will have to take into consideration the Constitutional provisions of section 42-B of Act, 1974 which reads as follows:- "42-B. Decisions of Supreme Court binding on other Courts.---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."
Thus, the constitutional provision clearly declares that abiding by the principle of law enunciated by this Court is mandatory for all the other Courts in the Azad Jammu and Kashmir. Therefore, in view of this Constitutional provision, when this Court has declared that the AJ&K Council or Assembly has no Constitutional competence to make laws or to legislate for the officers who are not officers of the AJ&K Council of Government. It is further laid down that law cannot be framed by the legislative bodies of the Azad Jammu and Kashmir so as to confer powers or functions on the employees who are not falling within the domain of the Azad Jammu and Kashmir Government or AJ&K Council. Thus, its logical conclusion is that that any law which is made without constitutional competence, is void. Now the question arises that as to what is the status of such void law? The apex Court of India in the case reported as Behram Khurshid Pesikaka v. State of Bombay [AIR 1955 SC 123], has held that once a law has been struck down as unconstitutional law by a Court, no notice can be taken of that law by any Court. Para 53 of the judgment reads as following:- "53. The learned Attorney General contended that the correct approach to the question was that there being a strong presumption in favour of the constitutionality of a statute, it is for those who assail it as unconstitutional to establish it, and therefore it was for the appellant to establish that the statute was unconstitutional, and that unless he proved facts requisite for the constitutional invalidity of the conviction he could not succeed. We cannot agree that that is a correct way of judging criminal cases. The Constitutional invalidity of a part of section 13(b) of the Bombay Prohibition Act having been declared by this Court, that part of the section seized to have any legal effect in judging the cases of citizens and had to be regarded as null and void in determining whether a citizen was guilty of an offence. Article 141 of the Constitution declares that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. In view of this clear enactment there is no scope in India for the application of the American doctrine enunciated by Willoughby ("The Constitution of the United States" Vol (1-10), wherein the learned author states, "the declaration by a Court of unconstitutionality of a statute which is in conflict with the constitution affect the parties only and there is no judgment against the statute; that the opinion or reasons of the Court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; the parties to that suit are concluded by .the judgment, but no one else is bound; a new litigant may bring a new suit based on the very same statute, and the former decision cannot be pleaded as an estoppel but can be relied on only as a precedent". Once a statute is declared void under Article 13(1) or 13(2) by this Court, the declaration has the force of law, and the statute so declared void is no longer law qua persons whose fundamental rights are thus infringed. In America there is no similar statutory provision and that being so, the doctrine enunciated by the learned author can have no application here. In this country once a law has been struck down as unconstitutional law by a Court, no notice can be taken of that law by any Court, and in any case an accused person need not start proving that the law is unconstitutional. The Court is not empowered to look at that part of the law which has been declared as void, and therefore there is no onus resting on the accused person to prove that the law that has already been declared unconstitutional is unconstitutional in that particular case as well. The Court has to take notice only of what the law of the land is, and convict the accused only if he contravenes the law of the land."
(underlining is ours)
16. Another aspect of the matter is that once it has been declared by this Court that the legislative bodies of the Azad Jammu and Kashmir have got no Constitutional competence to legislate in respect of the persons who are not the subject of their legislation. What is the prospective impact of this principle of law enunciated by this Court in the light of the Constitutional Provisions of section 42-B of Act, 1974. The superior Courts of Pakistan while interpreting the peri materia Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 has held that any principle of law enunciated by the apex Court is binding on all the functionaries. In the case reported as Moulvi Abdul Qadir v. Moulvi Abdul. Wassey and others [2010 SCMR 1877], the apex Court while discussing the scope of Article 189 of the Constitution of Pakistan in para 8 has observed as under:- "8. It is well settled that question of law, pronounced or declared by this Court in terms of Article 189 of the Constitution has binding effect on all the functionaries, both executive and particularly the judicial authorities. The superior Courts, Tribunals have obligation to implement and adhere to the judgment of the Supreme Court..."
' In the case reported as Muhammad Younas and another v. Election Tribunal, Ferozewala/Addl.
District Judge, Ferozewala, etc. [2004 YLR 1090], Lahore High Court has observed that the judgment of the apex Court is binding upon each and every organ of the State. Relevant portion of the judgment reads as under:- "...It is settled principle of law that judgment of the honourable Supreme Court is binding on each and every organ or the State by virtue of Articles 189 and 190 of the Constitution whereas the judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. The contention of the learned counsel for the respondents that petitioners have not taken a specific ground, has no force in view of grounds (a) and (1) which have already been reproduced above in the narration of the arguments of the learned counsel for the petitioners."
' Same like in the case reported as State Bank of Pakistan and others v. Mst. Mumtaz Sultana and others [2010 SCMR, 421], the apex Court of Pakistan dealt with the legal proposition in paras 10 and 11 of the judgment which reads as under:- "10. Indeed it does not behave that a statutory institution like State Bank of Pakistan should rest its defence on such flimsy ground to deny the benefits to those, who had been working for it. In Messrs Pfizer Laboratories Limited v. Federation of Pakistan and others PLD 1998, SC 64 Ajmal Mian, J, (as his lordship then was) referred to the observations made in Messrs Shiv Shankar Dal Mills and others v. State of Haryana and others AIR 1980 SC 1037, that the public bodies should not take the plea of limitation in returning the money to the public nor "a negative plea of alternate remedy" should be taken; and that in writ jurisdiction, "it is perfectly open for the Court, exercising this flexible power, to pass such order such as public interest dictates and equity projects". What the High Court has done in the instant case by accepting the petitions of the employees, is simply to give effect to the judgment of the Court and redress the grievance of the employees as they were not being treated justly and fairly and in consonance with the judgment of this Court. The High Court rather felt bound by the judgment of the Court and instead of demeaning of the same, acted in compliance of dictates of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
11. Justice (Rtd.) Fazal Karim in his work "Judicial Review of Public Actions" has dealt with this subject in. Volume-II at pages 512, 521 and 533 and observed:- 'The matter can be looked at as follows. The superior Courts serve, while deciding cases, two purposes; one, the private purpose of deciding disputes between the parties and two, the public purpose of making law to ensure uniformity and thereby to ensure confidence in the administration of justice and in appropriate cases to clarify the law, the practice and procedures and thereby to help maintain the standards of first instance Courts and tribunals. As Lord Diplock observed in Hoffmann-La Roche v. Secretary of State, "Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in relying on the law which the statutory instrument purported to declare. 'The classic example of such a decision being binding upon third parties is cooper v. Aaron. Although the State of Arkansas was not a party in the historical Brown case, yet the governor and the legislature of that state were held bound by the Supreme Court's decision in Brown.'
'The use of precedent also promotes equality, namely, the ideal that like cases should be treated alike, which is one of the most important ingredients of justice. "Like cases must be decided alike, not only to achieve distributive justice but primarily to maintain the certainty.'
Thus, from the survey of the referred case law it is spelt out that the principle of law enunciated by this Court is binding on all the functionaries and authorities of the State. While applying this principle in the present case, the position is clear that once this Court has declared that the legislative bodies of the Azad Jammu and Kashmir have no constitutional competence to legislate in relation to the persons who are H not falling within the domain of section 31 of Act 1974, and any such legislation will be void, thus, by application of these principles In this case, it is clear that the authorization to Banking Court, Rawalpindi to try the cases relating to the territories of Azad Jammu and Kashmir is void and shall be deemed inoperative. This view also finds support from the legislative history on the subject matter. The AJ&K Council subsequently, amended the law and now provided for establishment of Banking Court in the Azad Jammu and Kashmir by the AJ&K Council itself. Thus, it appears that the AJ&K Council, while implementing the enunciation of law laid down in Messrs Jabeer Hotel's case has amended the law.
17. In the light of the survey of the legal precedents of the superior Courts of Sub-continent discussed in preceding paras, it is manifestly clear that the superior Constitutional Courts of the State, being guardian of the Constitution, are duty bound to vigilantly exercise their jurisdiction for upholding the supremacy of the Constitution. It is also duty of the Constitutional Courts to maintain the limits prescribed by the Constitution for all the institutions and not to allow any illegality and transgression by any institution to erode and cross the Constitutional limits. The consensus of juristic opinions which is depicted from the hereinabove discussed precedents is that if the legislature travels beyond its Constitutional competence and makes any law in contravention of the I Constitutional provisions, the same whenever noticed by the superior Courts, should be struck down or ignored as deemed or felt appropriate in the light of the circumstances of each case.
18.In the case in hand, the legislature of AJ&K has promulgated the Azad Jammu and Kashmir Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1998, (II of 1998) through which the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (15 of 1997) was adapted. Under the provisions of this Act, it was provided that the AJ&K Council may authorize the Banking Court established by the Federal Government to exercise jurisdiction as Banking Court for the Azad Jammu and Kashmir. Subsection (2) of section 2 of the Adaptation Act, 1998, to the extent of authorizing the Banking Courts established by the Federal Government of Pakistan, with the powers to act as Banking Court for the territories of AJ&K, in the light of the principle of law enunciated in Messrs Jabeer Hotel's case, [2001 PLC (C.S.) 11], being ultra vires to the Constitution was to be struck down or ignored.
19.It appears that the legislature, after pronouncement of Messrs Jabeer Hotel's case, being conscious of the fact type of legislation is beyond the legislative competence, firstly, through an Ordinance, modified the law and subsequently, the Act, I of 2002 called as the Azad Jammu and Kashmir Financial Institutions (Recovery of Finances) (Adaptation and Enforcement) Act, 2002 (hereinafter to be referred as Act, 2002), has been passed. In the newly promulgated Act, 2002, the unconstitutional provisions authorizing the Banking Courts established by the Federal Government of Pakistan to exercise the powers relating to the territories of Azad Jammu and Kashmir has been omitted. It is also in the Court's judicial notice that in the Azad Jammu and Kashmir, Banking Court has been established by the AJ&K Council under the provisions of Act, 2002 to carry out the purpose of the adapted Financial Institutions (Recovery of Finances) Ordinance, 2001. Thus, in view of this subsequent legislative development, there is no need to strike down the provisions of Act, 1998 as the same by the legislative measures have already been omitted from the statute book.
However, at the time of passing the impugned decree, the said provisions were inoperative, thus, according to the principle of law discussed hereinabove, these are to be ignored and deemed as non-existent. Therefore, Constitutionally and legally, it will be presumed that no Banking Court for the purpose of the cases under Act, 1998 for the territories of the AJ&K had been established.
Hence, legally speaking, any proceedings conducted or decree passed by such non-existent Court has no legal status or effect. The High Court has rightly accepted the appeals and to his extent, appeals before this Court have no substance.
20. In this state of affairs, the High Court was left with no option except to follow the principle of law laid down by this Court in Messrs Jabeer Hotel's case. Therefore, the impugned judgment does not suffer from any legal infirmity and the appellants have failed to justify the interference in it.
21 So far the principle of law laid down in the reports relied upon by the learned counsel for the appellants is concerned, being distinguishable, do not require appreciation in depth. However, according to our birds eye view, the learned counsel for the appellants have referred to Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab [AIR 1955 SC 549], McCarthy and Stone (Developments) Ltd. v. London Borough of Richmond Upon Thames, [1994 PTD 1324]. These citations relate to the point of executive functions and the functions of the authority.
' Same like in the case reported as Federation of Pakistan through Ministry of Defence and 2 others v. Muhammad Khan and another [PLD 1991 SC(AJ&K) 33], [PLD 1988 SC 161] and Azad Kashmir Logging and Saw Mills Corporation v. Collector Central Excise and Sales Tax and others, (Civil Appeal No, 20/2001, decided on 30.7.2003), have, been referred to on legal points of coram non judice and the doctrine of de facto exercise of powers by a public office holder.
' The cases reported as Muhammad Nazir Khan v. Azad Government and 4 others [2001 SCR 84], Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others [PLD 1985 SC (AJ&K) 102], Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others [1996 SCR 161], Dr. Mehmood Hussain Kiani v. Azad Government and 26 others [1996 PLC (C. S.) 912], Vice Chancellor and 3 others v. Muhammad Shahzad Khalid [PLD 2001 SC(AJ&K) 21] relate to the point of necessary party.
' The case reported as Khan Iftikhar Hussain Khan of Mamdot (represented by 6 others) v. Messrs Ghulam Nabi Corporation Ltd., Lahore [PLD 1971 Supreme Court 550] is referred on the legal proposition as suit on behalf of company.
' The authority referred to in the case reported as Abdul Karim and 2 others v. Messrs United Bank Ltd. of Pakistan [PLD 1997 Karachi 62] is regarding the interpretation of statutes.
' The case law referred to in the case titled Mian Manzoor Ahmed Wattoo v. Federation of Pakistan and 3 others [PLD 1997 Lah. 38] is regarding the words and phrases for the connotations 'Function' "malice in law" and "malice in fact".
' Commissioner. Income Tax and others v. Messrs Saeed Motors Mirpur (Civil Appeal No, 88/2002 decided on 1.7.2003), has been referred on the legal proposition of interpretation of statute.
22 In the light of hereinabove discussed legal and factual proposition, none of the cited reports, and legal precedents has any relevance with the case in hand. No doubt, the learned counsel for the appellants have burdened himself with the extra labour but the same is not helpful to the appellant bank.
The High Court has rightly accepted the appeal, thus, the impugned judgment does not call for any interference. With the above discussed detailed reasons and observations, the appeals stand dismissed with no order as to costs. #