RAJA SAEED AKRAM KHAN, J.---The supra-titled appeal by leave of the Court, arises out of the order of the High Court dated 21.12.2017. whereby Writ Petition No,1930/2017, filed by the respondents, herein, has been disposed of while quashing FIR No,91/2017, registered at the Police Station Dhirkot, in the offences falling under sections 10. 11 and 19 of the Offence of Zina (Enforcement of Hudood)
Act. 1985.
2. The relevant facts culminating into filing of the instant appeal are that the appellant. herein, lodged a report at the Police Station Dhirkot, on 07.11.2017, to the effect that one Abdul Qadoos Khan son of Kabir Khan. respondent No,1, herein, has kidnapped his daughter. Nimra Sajjad, with the abetment of some other persons. It was reported that the accused persons have kidnapped the complainant's daughter for illicit relations etc. On this report, the Police Station Dhirkot registered FIR No,91/2017, in the offences under sections 10, 11 and 19 of the Offence of Zina (Enforcement of Hudood) Act, 1985. Respondents Nos,1 and 2, herein, filed a writ petition in the High Court, for quashment of the FIR. The learned High Court through the impugned order dated 21.12.2017. disposed of the writ petition in the following terms:-- "In light of afore-discussed circumstances proceedings under FIR No,91/2017, registered with Police Station Dhirkot on 07.11.2017 in offences under Sections 10/11, 19 Zina Act, are hereby quashed"
The impugned order of the High Court dated 21.12.2017 has been assailed by the appellants, herein, through the instant appeal by leave.
3. Mr. Shahzad Shaffi Awan, Advocate, counsel for the appellant, submitted that the learned High Court, without adhering to the statutory provisions of law, finally issued the writ and on this sole ground, the impugned order is liable to be set aside. He submitted that the filing and disposal of writ petitions by the High Court is provided in the rules 32 to 38 the Azad Jammu and Kashmir High Court Procedure Rules, 1984. The learned High Court while accepting the writ petition through the impugned order, has not followed the proper procedure, as laid down in the rules. He further submitted that it is a settled principle of law that without admitting the writ petition for regular hearing and providing opportunity to the Respondents for filing written statements/objections, etc. the writ petition cannot finally be decided but the learned High Court without adhering to the statutory provisions and the dicta laid down by this Court in a number of pronouncements, has passed the impugned order, which is liable to be vacated. The learned counsel further submitted that the High Court failed to take into account that the FIR relating to the cognizable offence was duly registered on the complaint lodged by the appellant and the matter was under investigation but the learned High Court fell in error while not taking into account that the FIR cannot be quashed at the investigation stage.
4. On the other hand, Raja Imtiaz Latif, Advocate, counsel for the contesting respondents, submitted that the learned High Court issued the notice to the respondents for filing comments and keeping in view the peculiar facts and circumstances of the case, the learned Judge deemed it appropriate to decide the writ petition finally at the first hearing. In this way, no illegality has been committed while passing the impugned order, which is in consonance with law.
5. Mr. Zubair Ahmed Raja, the learned Additional Advocate-General, submitted that it was enjoined upon the High Court to decide the writ petition finally after admitting the same and providing the respondents an opportunity of hearing but the impugned order has been passed in deviation from the provisions of AJ&K High Court Procedure Rules, 1984. and the law enunciated by this Court in a number of judgments.
6. We have heard the learned counsel for the parties and gone through the impugned order along with the record.
7. Leave to appeal was granted to consider the sole point, whether the High Court was justified to quash the proceedings at the first date of hearing without providing the opportunity of hearing or filing written statement to the contesting respondents. It is a settled principle of law that in a case where the statute provides a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all. Part-B of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, deals with the writs and under Rules 32 to 38, the procedure for filing and disposal of writs is provided. Whenever a writ petition is filed, the bench seized with the matter may issue a notice before admission of such writ petition, to the persons effected thereby to show that why the petition may not be admitted and fix the date. After admission of the writ petition, the contesting non-petitioners shall be provided an opportunity of filing the written statements/ objections, documents, affidavits, etc, and thereafter an opportunity shall be provided to the petitioner for filing replication. The statutory rules mentioned hereinbefore have been interpreted and the proposition, as is involved in the case in hand, has been resolved in a number of pronouncements by this Court and it has been laid down that final disposal of the writ petition without admitting the writ for regular hearing, without providing opportunity of filing written statement/objections, etc, and without hearing is not recognized by the statutory provisions of law.
Reference may be made to the cases reported as (1) Mohammad Kamran Idrees v. Sarmad Ahmed and 4 others [2014 SCR 473] and (2) Muhammad Reaz Akhtar Chaudhary v. Sardar Karam Dad Khan and 14 others [2015 SCR 92]. In the former case, this Court has opined as under:-- "6. A definite scheme for disposal of the writ petition has been given in the Azad Jammu and Kashmir High Court Procedure Rules, 1984. Rules 32 to 38 are relevant which provide that whenever the writ petition is filed it shall be entrusted to a Judge for disposal by the Chief Justice or he may himself hear the same. The Judge seized with the matter can admit the writ petition for regular hearing without notice to the other party or may issue a notice for preliminary hearing and after admitting the writ petition the respondents have to be provided an opportunity for filing the written statement and thereafter after seeking replication the final arguments on the writ petition shall be heard and writ petition shall be decided. The writ petition cannot be finally disposed off without summoning the respondents, without seeking written statement and without hearing the respondents."
Similar view has been reiterated by this Court in the later judgment, referred to hereinabove, while observing as under:-- "13. Part-B of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984 deals with the writs in the nature of mandamus, prohibition, certiorari and quo warranto etc. Rules 32 to 38 provide the procedure for filing and disposal of writs. Whenever a writ petition is filed, the bench hearing it, may, issue a notice before the admission to the person affected to show why the petition may not be admitted and may fix the date on which the notice is returnable. After admission of the writ petition the respondents shall be provided an opportunity of filing written statement/objections, documents, affidavits etc. and thereafter an opportunity shall be provided to the petitioner for filing replication. The rules have been interpreted in a number of cases. This Court in the case reported as Deputy Commissioner Inland Revenue, Circle-10 (Professional) Muzaffarabad A. K. and another v. Messrs Neelum Jhelum Hydro Power Company (Pvt.) Ltd. through (Director Civil) NJHPC and others 2013 PTD 513 has observe that:-- ' ....It further elaborates that the admission of writ petition for regular hearing is necessary. Under Rule 35 notice of motion has to be served upon the person to be affected or any other respondent by registered post (acknowledgment). Under Rule 36, after a notice is served upon the person affected and he appears in the Court, he shall file objections and other documents along with at least two copies thereof within a month from the date of appearance unless the Court otherwise directs. When the objections are filed by the respondent, the petitioner may, with the leave of the Court, file an affidavit and any document in rejoinder along with at least two copies thereof within a week or such time as the Court may directed and serve a copy thereof on the respondent or his counsel. Under Rule 38, the writ petition has to be finally decided after hearing the parties. What is evident from the above referred rules is that when a writ petition is filed, it shall be placed before a bench. If it not dismissed summarily and the bench admits it for regular hearing then a notice shall issue to other party, who shall be required to file counter affidavit, documents, objections/written statements. The petitioner, if so desires, with the permission of the court may file an affidavit and any document in rejoinder. After hearing the parties the Court may pass any appropriate order on the writ petition. The final disposal of writ petition without admitting it for regular hearing is not covered by the rules....
It was further observed in the same report, as under:-- "The relief prayed for was granted through order dated 7.5.2010 without admitting the writ petition for regular hearing, without providing an opportunity to the respondents for filing objections/, written statements and without hearing them. It is evident from order dated 30.4.2010 that the preliminary arguments were to be heard on 3.5.2010 and after hearing preliminary arguments, final relief was granted which is against the scheme of High Court Procedure Rules, 1984."
8. In the light of statutory provisions and the above-referred dicta laid down by this Court, we are convinced to hold that no final relief can be granted without admitting the writ petition for regular hearing or providing opportunity of hearing to the contesting party, which is missing in the impugned order. The learned counsel for the appellant has rightly argued that the impugned order is passed in violation of rules 32 to 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, and writ has been issued in utter disregard of the dicta laid down by this Court, as well as the statutory provisions dealing with the subject-matter, thus, we do not intend to go into the merits of the case and are constrained to remand the case while setting aside the impugned order, to the High Court for decision afresh after admitting the writ petition, seeking written statement/objections and providing fair opportunity of hearing to the contesting parties as well as the State. Resultantly the appeal is accepted, the impugned order dated 21.12.2017 is set aside and the case is remanded to the High Court with the direction that the writ petition shall be decided under law, positively, within a period of 45 days of the receipt of the judgment.
9. Here, we may like to observe that we have come across a number of such like judgments/orders, which have been passed without following the law enunciated by this Court in a slipshod manner.
The cases are remanded due to such like nonspeaking/stereotype orders, which force the parties to face agony in shape of repeated unnecessary litigation, which is not the spirit of principle of administration of justice and such like practice cannot be approved. It may also be observed that the Supreme Court is the apex judicial forum of the State and it has to interpret the law while hearing appeals from the judgments of the High Court and the subordinate judiciary. It is the foremost duty as well as prerogative of the Supreme Court to interpret the law in a consistent and organized manner to avoid legal uncertainty. The law declared by the Supreme Court is binding on all the organs of the State, which are bound to follow the same and the subordinate Courts are always required to give utmost respect, regard and consideration to the judgment, in which the principle of law has been enunciated. Under section 42-B of the Azad Jammu and Kashmir Inteiim Constitution Act. 1974, every decision of the Supreme Court shall be binding on all the Courts in Azad Jammu and Kashmir, if a question of law is decided or the decision is based on the principle of law or it enunciates a principle of law. Section 42-B, ibid, is reproduced as under:-- "42.B. Decision of the 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."
In the case reported Maroof Baig v. Azad Government and 8 others [2016 SCR 1359], it has been observed by this Court as under:-- "9. Here, it may be observed that despite a number of judgments of this Court, the High Court while .deciding the writ petitions does not follow the judgments of this Court to the effect that the provisions of rule 32(2) of the High Court Procedure Rules, 1984, are mandatory and non- compliance of the rules results into dismissal of the writ petitions and applies the rule at its sweet will. In some cases the writ petitions are dismissed being filed in violation of rule 32(2) and in some cases the judgments of this Court on rule 32(2) of the High Court Procedure Rules, 1984, are ignored and the writ petitions are entertained. It is expected from the High Court that it shall follow the rule of law laid down by this Court."
Similarly, in the case reported as Muhammad Tariq Badr and another v. National Bank of Pakistan and 3 others, the Supreme Court of Pakistan, has laid down, as under:-- " ...Moreover, for the purpose that a judgment of the apex Court should have due effect and due deference, three conditions as per "Khan Gul Khan others v. Daraz Khan (2010 SCM R 539) should be met (a) judgment decides question of law; (b) it is passed upon the basis of law; and (c) it enunciates the principle of law."
Subsection (3) of section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, reads as under:- "42-A. Issue and execution of processes of Supreme Court.
(1) ...............................................
(2)................................................
(3)All executive and judicial authorities throughout Azad Jammu and Kashmir shall act in aid of the Supreme Court."
From a literal perusal of section 42-A(3) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, it clearly depicts that not only the executive authorities of Azad Jammu and Kashmir but the judicial authorities are also bound to act in aid of the Supreme Court. In the case reported as Finance Department of AJ&K and 2 others v. Mazhar lqbal [2003 SCR 155], it has been held by this Court as under:-- "7. The refusal of Finance Department in the present case, in my view, as rightly pointed out by the High Court, is a clear violation of section 42-A(3) of the AJ&K Interim Constitution Act, 1974, which provides as follows:- '42-A(3). All executive and judicial authorities throughout Azad Jammu and Kashmir shall act in aid of the Supreme Court.'
This command of Constitution, reproduced above, leaves no doubt that an enunciation of a principle of law is binding on all the judicial and executive authorities working in Azad Jammu and Kashmir. The executive as well as the judicial authorities are bound to act in aid of Supreme Court.
In this view of the matter, the refusal on the part of Finance Department is unjustified and without any lawful authority.
8. I have also noticed in various other matters that the Finance Department ignores the orders of this Court with contemptuous disregard and we will have to proceed against them when such occasion arises. I hope, that in future the Department will mend its ways and shall respect the orders of superior Courts of this country. The Constitution being the supreme law is not subordinate to the wishes and whims of the Finance Department or any other Department working in the territory of Azad Jammu and Kashmir."
A juxtapose reading of section 42-A(3) and section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974, makes it mandatory for the judicial authorities not only to follow the judgments of the Supreme Court as per the interpretation of law laid down by it in the judgment but also to act in aid of the Supreme Court.
10. The jurisdiction of the apex Court under the constitutional provisions is not just to decide the questions of law but the same also extends to enunciate the principles of law, which decisions and principles are binding on all other courts in the. State. The object behind it is to achieve the legal certainty, stability and predictability and maintain the discipline in all ranks of judiciary. The deviation from the principle of stare decisis can breed a sense of injustice and uncertainty, further it may also lead to hamper trust of the litigants and the public at large on judiciary, therefore, passing of an order without taking into account the law declared by the Supreme Court amounts to deviation from it. Such practice is unpleasant and not healthy one, which is not expected in future.
11. As we have observed in the preceding paragraph that the law enunciated by the apex Court is binding in nature and in case of non-compliance, the answer is provided by the Azad Jammu and Kashmir Interim Constitution Act, 1974, in section 42-E(4), and no person is immune from the legal consequences thereof, even the judge of the High Court. In future, if such situation arises, the matter may be referred to the Supreme Judicial Council, therefore, the learned judges of the courts below shall remain careful in future while passing such type of orders and adopting such like attitude i,e, to ignore the dicta of the apex Court. It is normally not a practice of this Court to discuss the conduct of the judge of the superior judiciary, but the circumstances of the case have constrained us to observe the same. Our this view finds support from the judgment of the Supreme Court of Pakistan, reported as Nazir Ahmed and another vs. The State and others [PLD 2014 Supreme Court 241], wherein, it has been observed as under:-- ...We may observe at the outset that it is quite unpleasant to discuss the conduct of a Judge of the superior judiciary through a judgment but we are constrained to undertake such an exercise in this case because it is none other than a Judge of a High Court himself who has formally approached this Court and has insisted that we may comment upon some comments already made by this Court about his conduct."
With the above observations, the supra titled appeal is disposed off. The Office is directed to transmit the copy of the judgment to the Registrar High Court for placing the same before the learned Chief Justice for kind perusal.