SADAQAT HUSSAIN RAJA, C.J.---The above titled writ petitions have been filed under Article 44 of Azad Jammu and Kashmir Constitution, 1974.
2. As the common questions of facts and law are involved in all the captioned writ petitions, therefore, these are clubbed and disposed of through this single Judgment.
3. Brief facts forming background of Writ Petition No.1736-Al 2021 are that petitioner is 1st class State Subject of State of Azad Jammu and Kashmir and permanent resident of Jhaag Sharif District Neelum, besides being a 'social and political activist and Member of Pakistan Tehreek-i-Insaf, Azad Kashmir. It is averred that being a member of P.T.I., Azad Kashmir applied for party ticket for upcoming general elections of Legislative Assembly of AJ&K. The application of the petitioner has been considered by the party Election Board along with other applications and the petitioner was also interviewed by the Parliamentary Board at Central Secretariat Islamabad. It is further averred, that petitioner, prior to initiating political and social activities was posted in AJ&K Assembly in capacity of Reporter (B-16) but thereafter he resignatyed/left the aforesaid job on 01.09.2021. It is contended that petitioner decided to contest the General Election from Constituency LA-26 District Neelum and received marvelous response from general public/ voters, due to this reason, respondents, in connivance with each other, to interrupt his political career, introducing Ordinance VIII of 2021, whereby an amendment has been made by amending Section 31 in the Election Act through Section 5 of "impugned Ordinance" by way of imposing of expiry of two years from the date of retirement in order to participate in the General Elections. It is contended that the respondents, after admission of this writ petition for regular hearing and suspension of Section 5 of "impugned Ordinance" by this Court vide order dated 26.05,2021 introduced the impugned Ordinance in Azad Jammu and Kashmir Assembly on 28.05.2021 which was passed as Act XIII of 2021 dated 03.06.2021, whereby Section 31 of Act XVIII of 2020 has been amended, by directly challenging the proprietary and authority of this court. It is further contended that section 5 of the impugned Ordinance and impugned Act have snatched the vested rights of the petitioner especially those enshrined in Article 24 read with Article 4(4)(15) of Interim Constitution, 1974, therefore, same is not maintainable. It is maintained that the impugned Ordinance has been issued on 10.05.2021 without approval of the cabinet which is evident from the letter of Secretary Law, Justice, Parliamentary Affairs and Human Rights dated 20.05.2021 (Annex.PF). It is zealously contended that it has been conclusively settled by the Apex Court of Pakistan in case reported as "PLD 2016 SC 808, while interpreting Article 89 of Constitution of Islamic Republic of Pakistan, 1973 that any Ordinance, promulgated without approval of Cabinet is ultra vires of constitution and has no, value in eyes of law. It is further contended that Article 89 of Constitution of Islamic Republic of Pakistan, 1973 is a ditto copy of the Article 41 of AJ&K Interim Constitution, 1974 therefore, rule of law laid down by Supreme Court of Pakistan is equally applicable under AJ&K Constitution. It is averred that the impugned Ordinance has been issued in clear violation of: Rules 23(1)(b) and 25(1) and (6) of Rules of Business, 1985, hence, same is not sustainable. It is further averred that the Election Act 2020, was in existence at the time of resignation of petitioner from his service, placed no restriction upon retired government servants for participation in election prior to expiry of two years from the date of their retirement/relinquishing the job. It is prayed that by accepting the writ petition, the impugned Ordinance (Ordinance VIII of 2021) and impugned Act (Act XIII of 2021) generally and section 5 of impugned Act and impugned Ordinance specifically (whereby section 31 of Azad Jammu and Kashmir Election Act, 2020 has been amended) may kindly be quashed by declaring the same as illegal, ultra vires of Interim Constitution, 1974 and being violative of vested/accrued constitutional rights of the petitioner, in the larger interest of justice.
4. The writ petition was admitted for regular hearing on 26.05.2021 and written statement were sought from respondents and needful has been done on behalf of respondents. Later on amended writ petition was filed with permission of the Court which was accepted and amended written statement was also filed on behalf of private-respondent, wherein the claim of the petitioner has been refuted in toto.
5. Brief facts forming background of Writ Petition No.1793/2021 are that petitioner being member of PML(N), Azad Jammu and Kashmir applied for the party ticket of Pakistan Muslim League (N) Azad Jammu and Kashmir for upcoming General Elections of Legislative Assembly of Azad Jammu and Kashmir on 06.04.2021. The application of the petitioner has been considered by the party Election Board along with other applications and the petitioner was also interviewed by the parliamentary Board at Central Secretariat Islamabad (PMLN). It is contended that the petitioner has served in local Govt. and Rural Development as community Development Officer/incharge Project Manager and thereafter resigned/left the aforesaid job on 01.09.2020, whereas the actual retirement dated was 01.01.2024 but for the purpose to contest the election, got retirement earlier. It is further contended that the petitioner, being cognizant of the law, enforcement in Azad Jammu and Kashmir Election Act, 2020 (enforced on 24.06.2020), herein, after shall be referred as "Election Act", was fully qualified for contesting upcoming General Elections of Legislative Assembly as no barrier existed under law for the retired Government servant who had left the job to participate in the General Elections prior the expiry of two years from the date of quitting the government job. It is contended that amending the Election Act, 2020 through impugned amendment vide ordinance dated 10.05.2021 by imposing the restriction, the petitioner and other State Subjects are restrained from contesting the election, which is against the fundamental rights guaranteed by Interim Constitution, 1974. It is further contended that Ordinance was issued on 10.05.2021 without fulfilling the procedure and due process of law, while the said summary for the cabinet approval was presented before Cabinet on 20.05.2021 by respondent No.2. It is prayed that by accepting the writ petition, the impugned Ordinance (Ordinance VIII of 2021) may kindly be quashed by declaring the same as illegal, ultra vires.
6. Brief facts of Writ Petition No.2055/2021 are that being member of Pakistan Tehreek-e-Labaik Azad Kashmir applied for the party ticket of Pakistan Tehreek-Labaik AJ&K for upcoming General Election of Legislative Assembly of Azad Jammu and Kashmir. He was considered by the party and he was also interviewed by the Parliamentary Board and petitioner is nominated by the party as candidate of Tehreek-e-Labaik. It is contended that prior to initiating political and social activities, was performing as Deputy Custodian in the office of Custodian Evacuee Property and was retired from service on 16.03.2020. It is contended that according to Azad Jammu and Kashmir Election Act, 2020, he was qualified person for upcoming general election of Legislative Assembly as no barrier existed under law for retired government servants who had retired from service for General Election prior the expiry of two years from the date of quitting the government job. The petitioner decided to contest the General Election from LA-2 District Mirpur and received marvelous response from General Public/Voters due to this reason, respondents, in connivance with each other, to interrupt his political career, enforced Ordinance VIII of 2021 and now through impugned Act has been passed, whereby an amendment has been made by amending section 31 in the Election Act through section of impugned ordinance by way of imposing of expiry of two years from the date of retirement in order to participate in the general election. The petitioner has almost taken same stands as adopted in other connected writ petitions and finally prayed by accepting writ petition, the impugned Election Amended Act 2021 (Act XIII of 2021) dated 03.06.2021 generally and its section 5 specifically may kindly be quashed by declaring the same as illegal, ultra vires of Interim Constitution, 1974 and being violative of vested/accrued constitutional rights of the petitioner, in the larger interest of justice.
7. Respondent No.8 in reply of writ petition filed written statement wherein it is contended that the petitioner remained failed to establish any substantial legal right on the basis of which he stand legally entitled to file the writ petition, furthermore, no such proof is appended with the writ petition, therefore, writ petition is liable to be dismissed on this sole ground. It is further contended that a valid statute enacted by the legislature cannot be declared unconstitutional lightly. Finally, it is prayed that the writ petition may be dismissed.
8. In Writ Petition No. 2143/2021 the petitioner Muhammad Siddique Raja has also taken same stand as adopted by the other petitioners in the abovementioned identical writ petitions hence, need not to be incorporated in detail herein. It is prayed that by accepting the writ petition the impugned legislation i.e. Article 5 of Ordinance VIII of 2021 and section 5 of Act XIII of 2021 whereby section 31 of Azad Jammu and Kashmir Election Act, 2020 has been amended, may kindly be declared ultra- vires to Interim Constitution, 1974 and same may be set-aside.
9. Written statement has been filed on behalf of respondents, wherein they refuted the stance of the petitioner and finally prayed for dismissal of the writ petition.
10. Mr. Barrister Humayun Nawaz Khan, the learned counsel for petitioner Mian Muhammad Shafique reiterated the facts and grounds taken in the writ petition and contended that in light of Article 24 read with Article 4(4)(15) of Interim Constitution, 1974, through section 5 of the impugned Ordinance and impugned Act, the vested rights of the petitioner has been snatched. He further contended that the impugned Ordinance has been issued on 10,05.2021 without approval of the cabinet which is evident from the letter of Secretary Law, Justice Parliamentary Affairs and Human Rights dated 20.05.2021 (Anex.PE). He argued that it has conclusively been settled by the Apex Court of Pakistan while interpreting Article 89 of Constitution of Islamic Republic of Pakistan, 1973 that any Ordinance, promulgated without approval of Cabinet is ultra vires of Constitution and has no value in the eye of law. The learned counsel placed reliance on the case titled "Mustafa Impex v.
Government of Pakistan and others reported as PLD 2016 SC 808. He further argued that the impugned Ordinance has been issued in clear Violation of Rules 23(1)(b) and 25(1) and (16) of Rules of Business, 1985, hence, same is not sustainable. He maintained that Section 5 of the impugned Act could never have been presented in the Legislative Assembly as the impugned Ordinance was presented in the Legislative Assembly on 28th Day of May, 2021 under Article 41(2) of AJK Interim Constitution, 1974 read with Rule 34 of AJ&K Rules of Business, 1985 and not as separate Bill under Rule 32 of AJ&K Rules of Business, 1985. He further maintained that the impugned Ordinance as well as the impugned Act, the respondents introduced subsection (2-A) in Section 31 of the Election Act which impliedly allowed and bestowed the power to the Election Commission to disqualify a candidate on the rational of any sort of conviction which ex-facie amounts to creation of a parallel system for adjudication which is against the principle of trichotomy of powers under constitution, hence, the impugned Ordinance is liable to be set-aside. The learned counsel contended that the impugned Ordinance and impugned Act offend the Article 56 (C) of the Interim Constitution which provides that if any law is going to be repealed it will have no effect upon accrued rights already created in favour of the beneficiaries by virtue of repealed law, likewise how by way of amendment through temporary piece of legislation a right to participate in election created in favour of the petitioner under an Act of Assembly can be snatched and extinguished, therefore, keeping in view this aspect of the matter the impugned Ordinance is liable to be quashed. Moreover, section of General Clauses Act, 1897 also protects the accrued rights of the petitioner. The learned counsel finally prayed that by accepting the instant writ petition, the Impugned Ordinance (Ordinance VIII of 2021) and Impugned Act (Act XIII of 2021) generally and section 5 of impugned Act and Impugned Ordinance specifically (whereby Section 31 of Azad Jammu and Kashmir Election Act, 2020 has been amended) may kindly be quashed by declaring the same as illegal, ultra vires of Interim Constitution, 1974 and being violative of vested/accrued constitutional rights of the petitioner, in the large interest of justice. The learned counsel in support of his submission, placed reliance upon the following case law:- PLD 1985 AJK 95, relevant page 128. 2002 CLC 1130.
11. Syed Shafqat Hussain Gardezi, the learned counsel for petitioner Ch. Muhammad Khalique Zaman owned and supported the arguments of Barrister Humayun Nawaz, Advocate and also referred the case law i.e. PLD 2005 Karachi 364 and PLD 2012 Bal. 57.
12. Mr. Muhammad Saqib Javed, Advocate representing Muhammad Siddique Raja (petitioner) also supported the arguments advanced by Barrister Humayun Nawaz Khan, Advocate and contended that his client was retired from service on 08.11.2019 whereby at the relevant time, AJ&K Election Act, 2020 was in the field hence, the impugned amendment is against the law and rules, which may be set-aside. The learned counsel prayed that by accepting the petition, the impugned legislation i.e. Section 5 of Ordinance VIII of 2021 and section 5 of Act XIII of 2021 whereby section 31 of Azad Jammu and Kashmir Election Act 2020 has been amended, may kindly be declared ultra- vires to Interim Constitution, 1974 hence, may be set-aside.
13. Syed Abdul Basit Gillani, Advocate appeared on behalf of Khan Muhammad Akbar for petitioner Raja Fatehullah Khan, owned the arguments of Barrister Humayun Nawaz Khan, learned counsel for the petitioner-Mian Muhammad Shafique and prayed for acceptance of the writ petition.
14. Mr. Tahir Aziz Khan, the learned Legal Advisor for respondent-AJ&K Election Commission while controverting the arguments of the learned counsel for the petitioner contended that petitioners are not aggrieved person as they failed to point out any infringement of their legal grievances by filing these petitions. He argued that petitioners remained failed to substantiate that a valid statute enacted by the legislature cannot be declared unconstitutional lightly. He further argued that without violation of the constitutional provisions, the law made by Assembly/Parliament or a state legislature is not declared bad. The learned counsel in support of his submission referred the following case law:-
1. 2011 SCMR 1537, 2. 2019 SCMR 859, 3. 2018 SCMR 1885,
4. PLD 2010 (sic) 983, 5. 2013 SCMR 34, 6.
2016 SCMR. 69 and 7. 2002 CLC 1130.
15. Mr. Sagheer Javed, the learned counsel for intervener/ Ehsan UI Haq, Advocate, argued that the contesting of Election is not an absolute fundamental right, it is a right, guaranteed with certain conditions, subject to some qualification 'and disqualification and the fundamental rights which are guaranteed under certain conditions can be amended by the Legislature and the Court cannot act as the Legislature. He emphasized that right of service is guaranteed on the basis of Educations, age and other qualifications mentioned in the Civil Servants Act. Similarly, right of vote is also subject to prescribed age and other qualifications as mentioned in the Constitution and Electoral Laws. He further argued that similarly, right to contest Election is also restricted with certain conditions. Finally, the learned counsel prayed for dismissal of the writ petitions.
16. Raja Ayaz Farid Khan, the learned A.A.G appearing on behalf of official-respondents argued that the qualification for Member of Legislative Assembly is mentioned in Article 24 of the Azad Jammu and Kashmir Interim Constitution, 1974 where disqualification is also mentioned and according to aforesaid Article 24(2)(f) "a person shall be disqualified to be elected as, and to be, a Member of the Assembly if, he is otherwise disqualified from being a Member of the Assembly by the Constitution or by or under any other law. He further argued that the petitioners are not qualified to contest election according to section 5 of the Election Act VIII of 2021. He contended that same Article is also incorporated in the Constitution of Pakistan, 1973 as Article 63(k) and this section was also borrowed from the Constitution of Pakistan, hence, it is not based on any mala fide nor any illegality has been committed by the Legislature. He submitted that the petitioner, Mian Muhammad Shafique, in (Writ Petition No.1736-A/2021) placed his resignation on 12.08.2020 before Secretary, AJ&K Legislative Assembly Muzaffarabad, which was accepted vide order dated 08.09.2020, he was relieved from service w.e.f. 01.09.2020. He further submitted that according to the contents of resignation, the petitioner resigned due to his personal engagements. The learned A.A.G mentioned that in Rule 23, sub-Rule (2) it is provided, that the Prime Minister, in cases of urgency or other exceptional circumstances, can give directions as to the manner of disposal of a case without prior reference to the Cabinet, but such case shall be reported to the Cabinet at the earliest opportunity thereafter. He maintained that at the time of promulgation of Ordinance, the case was presented before the Prime Minister in light of Rule 23 ibid, revised by the Azad Government of the State of Jammu and Kashmir Rules of Business 1985, in Rule 25 and the Ordinance was issued on 10.05.2021 and the matter was presented before the Cabinet in the first earliest opportunity on 24th May, 2021 and the Cabinet approved draft bills with the direction to place it before the Assembly. He also placed before the Court the decision of Cabinet of AJ&K, held on 24th May 2021. He argued that in the light of decision of Cabinet, the Ordinance was presented before Assembly on 26.05.2021. He maintained that it is not bad piece of Legislation. He maintained that the Constitution empowers the Legislature to make laws for the territory of Azad Jammu and Kashmir, according to Article 31 and the restrictions have been imposed in the same Article. He argued that the impugned Act is not against the restrictions imposed by the Constitution and principles laid down in pronouncements of the Superior Judiciary. He requested for dismissal of the instant writ petitions.
17. I have heard the learned counsel for the parties and gone through the record with utmost care.
18. The moot points which need resolution are; whether the-impugned Ordinance placed before the Legislative Assembly was valid or not? and whether the impugned Act is against the fundamental rights of the petitioners or not?
19. I have summoned the record from the Law Department and perusal of file reveals that official- respondents introduced Ordinance VIII of 2021, whereby an amendment has been effected in section 31 of the Election Act, 2020. Through Section 5 of "impugned Ordinance" by way of imposing restriction on ex-civil servants to contest elections before expiry of two years from the date of retirement. The moot point raised by the learned counsel for the petitioners that the impugned Ordinance has been issued on 10.05.2021 without approval of the cabinet which is evident from the letter of Secretary Law, Justice, Parliamentary Aftairs and Human Rights dated 20.05.2021 (Annex.PF).
20. To dig up the truth, Rule 23 of Rules of Business, 1985 is hereby reproduced as under:- "23. Cases to be brought before the Cabinet: (1) The following cases shall be brought before the Cabinet:
(a) ........................................................................
(b) promulgation and withdrawal of Ordinance;
(c) ........................................................................
(d) ........................................................................
(e) ........................................................................
(f) ........................................................................
(g) ........................................................................
(h) ........................................................................
(i) ........................................................................
(2) Notwithstanding the Provisions of sub-rule (1), the Prime Minister may, in cases of urgency or other exceptional circumstances, give directions as to the manner of disposal of a case without prior reference to the Cabinet, but such case shall be reported to the Cabinet at the earliest opportunity thereafter."
(underlining is mine)
21. A perusal of above-reproduced Rule shows that the Prime Minister, in cases of urgency or other exceptional circumstances, may give directions as to the manner of disposal of a case without prior reference to the Cabinet, but such case shall be reported to the Cabinet at the earliest opportunity thereafter. It shows from the record that at the time of promulgation of Ordinance, the case was presented before the Prime Minister in light of Rule 23 ibid, revised by the Azad Govt. of the State of Jammu and Kashmir Rules of Business 1985, in Rule 25 and same Ordinance was issued on 10.05.2021 and therefore, the matter was presented before the Cabinet in the earliest opportunity on 24th May, 2021 i.e. the 1st meeting and the Cabinet approved draft bills with the direction to place it before the Assembly and decision of Cabinet of AJ&K, held on 24th May 2021 is available on the file which is also reproduced as under:- AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (CABINET WING) < > < > < > "Muzaffarabad" 25th May, 2021.
To The Secretary, Law, Justice, Parliamentary Affairs and Human Rights Department, Azad Govt. of the State of J&K, Muzaffarabad.
Subject:. Decision of Cabinet taken in 48th Meeting of AJ&K Cabinet dated 24th May, 2021 on Draft Bills to be presented in upcoming Election of Legislative Assembly.
I am directed to refer to the subject cited above and convey that following draft bills were presented in the 48th Meeting of Cabinet dated 24th May, 2021; the Cabinet has unanimously approved draft bills with direction that following Bills may be presented in upcoming session of the Assembly without waiting for the issuance of the minutes: REGULAR AGENDA ITEMS i) The Repeal of Azad Jammu and Kashmir Council Laws Act 2021 (Presented by Law Department) ii) The President's Pension (Amendment) Act, 2021 (Presented by Law Department). iii) The Azad Jammu and Kashmir Elections (Amendment) Ordinance, 2021 (Presented by Law Department) iv) The West Pakistan Epidemic Diseases (Amendment) Ordinance, 2021 (Presented by Law Department).
EX-AGENDA ITEMS i) ........................................................................ ii) ........................................................................ iii) ........................................................................ iv) ........................................................................ v) ........................................................................
2. In view of the above, aforesaid decisions of the Cabinet are conveyed for further necessary action on the part of Law Department.
Signature (Muhammad Nadeem Abbasi)
Deputy Secretary S&GAD (Cabinet)
22. In the light of decision of Cabinet, the bill was presented before Assembly on 26.05.2021, hence, the contention of the learned counsel for the petitioners is hereby repelled. The learned counsel contended that the Ordinance was not approved by the Cabinet before promulgation, therefore, it is bad piece of bad legislation, is also not maintainable.
23. A person who intends to contest the Elections, has to show that he is qualified and is not subject to any of the disqualifications prescribed under law. Section 5 of AJ&K Legislative Assembly (Election) Ordinance, 1970 provides the qualifications and disqualifications to be elected or to be the member of the Assembly. This principle has been laid down in a case titled Aftab Hussain v.
Azad Jammu and Kashmir Legislative Assembly through President of Azad Jammu and Kashmir and 3 others [1991 CLC 2026], which is as under:-
4. The right to be a candidate and to the election is not a fundamental right. It is a statutory right and is subject to all such conditions and restrictions which the law granting the right imposes.
(PLD 1985 AJK 95). Therefore, a person who wishes to contest the election, has to show that he is qualified and is not subject to any of disqualifications prescribed under law. Section 5 of the AJ&K Legislative Assembly (Election) Ordinance 1970 (hereinafter =to be called as Election Law) provides the qualifications and disqualifications to be elected or to be a member of the Assembly."
(underlining is mine).
24. The qualification and disqualification of Member of Assembly is provided in Article 24 of Azad Jammu and Kashmir Interim Constitution, 1974. It is more appropriate to reproduce Article 24 (2)(f) of the Azad Jammu and Kashmir Interim Constitution, 1974, which is as under:- "24. Qualification of members of the Assembly,--(1) A person shall be qualified to be elected as, and to be, a member of Assembly if,-
(a) ........................................................................
(b) ........................................................................
(c) ........................................................................
(2) A person shall be disqualified from being so-elected if -
(a) ........................................................................
(b) ........................................................................
(c) ........................................................................
(d) ........................................................................
(e) ........................................................................
(f) he is otherwise disqualified from being of a member of the Assembly by [the Constitution] or by or under any other Law."
(underlining is mine)
25. The impugned Act has been enacted under sub-clause (f) of sub-Article (2) of Article 24 of the Interim Constitution, 1974 which empowers the Legislature to provide "disqualifications" and not "qualifications". The same principle has been laid down in a case titled "Ch. Muhammad Yousaf v.
The State and 4 others" [2002 CLC 1130]. The relevant portion is reproduced is as under:- "The law has been enacted under sub-clause (f) of subsection (2) of section 24 of the Constitution Act which empowers the legislature to provide "disqualifications" and not "qualifications". Therefore, we are unable to agree with the learned counsel for the appellants that in fact a "qualification" has been provided in the style of "disqualification". In the same way we are unable to agree with the learned counsel for the appellants that the President has suddenly promulgated the Ordinance under challenged without providing time to his clients to improve their qualifications. The President can promulgate an Ordinance at any time. It is the prerogative of the President to select the time.
The only restriction imposed under the Constitution Act is that he cannot exercise this power, when Assembly is in session as during such period it can exercise its legislative powers. It is not the claim of the appellants that the Ordinance was promulgated by the President when the Assembly was also holding its session."
26. The same provision has been incorporated in Article 63(k) of the Constitution of the Islamic Republic of Pakistan, 1973 which is as under:- "[63. Disqualifications for membership of Majlis-e-Shoora (Parliament).---(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if
(a) ........................................................................
(b) ........................................................................
(c) ........................................................................
(d) ........................................................................
(e) ........................................................................
(f) ........................................................................
(j) ........................................................................
(k) he has been in the service of Pakistan or of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or.."
27. Raja Ayaz Farid, the learned A.A.G appearing on behalf of official respondents stressed on the principle of Trichotomy. It is settled principle of law that Courts cannot interfere in the domain of other institutions or authorities unless, they travel beyond their constitutional or legal domain. The similar principle has been laid down in a case titled "Muhammad Akhtar and 183 others v. Azad Government and 7 others" (2016 SCR 853). The relevant paragraph is reproduced as under:- "10. Under the trichotomy of powers and constitutional scheme, the Courts are not supposed to interfere in the domain of other institutions or authorities, unless, they travel beyond their constitutional or legal domain. As in the instant case, the issues raised in the writ petitions clearly within fall the domain of the Government and Legislative Assembly, thus, the Courts cannot pre- empt or interfere in their domain."
28. Even otherwise, if any fault is found in the legislation, the Courts are not competent to rectify such fault, rather, it is the sole responsibility of the legislature to rectify the same. An identical proposition has been laid down in the case titled "Sm. Vidya Vati v. State of Punjab and others" reported as AIR 1968 Supreme Court 519. The relevant caption is reproduced as under:- "The Legislature has failed to make a provision enabling reservation to be made by persons belonging to such exceptional class. But on that account the Court is not competent to refuse to give effect to the plain words of the Act. A lacuna undoubtedly exist in the Act, but it is for the Legislature to rectify it and not for the Courts to give a strained meaning to the words used by the Legislature which they do not bear." (underlining is mine)
29. A bare reading of above-mentioned Article clearly shows that in the Constitution of Islamic Republic of Pakistan, 1973, two years restriction has been imposed to contest election for retired civil servants, hence, no mala fide has been attributed on behalf of the respondents-government, therefore, the stance taken by the petitioner is not maintainable, which is hereby turned down.
30. According to Article 24 read with Article 4(15) of the Interim Constitution, 1974, the government servants, including retired government servants are barred from contesting Elections or forming independent group of people who are barred to contest elections for a period of two years, from the date of cessation of their employment or retirement, as the case may be. An identical point came under the consideration of the Apex Court of Pakistan in a case titled "Hafiz Hamdullah v.
Safiullah Khan and others" [PLD 2007 SC 52], The relevant portion is reproduced as under:- "The requirement for contesting election to a seat in the Assembly for a government servant is that period of two years should lapse after his retirement/resignation for becoming eligible to contest the election. The relevant dates for completion of two years are the dates of retirement/resignation and filing of nomination papers. Appellant's resignation having been accepted on 13.11.2003, he was a government servant at the time of filing of nomination paper and on the date of polling, thus, was disqualified from contesting the election and his election was rightly declared void by the High Court. For the above proposition reliance is placed on the judgment of this Court in the case of "Muhammad Ayub v. Abdullah Khan (PLD 2004 SC 479).
31. In many landmark cases, the Apex Court of Pakistan has also held that the Court should lean towards the constitutionality of a Legislative enactment instead of destroying it, keeping in view the rule of constitutional interpretations. The same principle has been rendered in the case titled 'Dr. Mobashir Hassan and others v. Federation of Pakistan and others" (PLD 2010 SC 265), which is as follows:- "39. There is another principle of law, which casts duty upon this Court to the effect that it should normally lean in favour of constitutionality of statute and efforts should be made to save the same instead of destroying it. This principle of law has been discussed by this. Court on a number of occasions. Reference in this behalf may be made to the cases of Abdul Aziz v. Province of West Pakistan (PLD 1958 SC 499), Province of East Pakistan v. Siraj-ul-Haq Patwari (PLD 1966 SC 854), Inam-ur-Rehman v, Federation of Pakistan (1992 SCMR 563), Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956), Asif islam v. Muhammad Asif (PLD 2001 SC 499) and Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC 133). This principle has been appropriately dealt with in the case of Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) in the following terms:-- "that the law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rules of constitutional interpretation, is that there is a presumption in favour of the constitutionally of the legislative enactments unless ex-facie it is violative of a constitutional provision."
32. Admittedly, the petitioners remained failed to establish any substantial legal right on the basis of which they are legally entitled to file the writ petitions. Furthermore, the law in question <has been duly passed under the mandate of Azad Jammu and Kashmir Interim Constitution, 1974 therefore, a valid law cannot be struck down on the whims and wishes of any person. Even otherwise, the impugned law has been enforced and promulgated by following after due process of law. Moreover, the Rules made under impugned Law have also not been challenged by the petitioners, hence, the claim of the petitioners is vague, which is hereby deterred.
33. It is worthwhile to mention here that this Court vide order dated 26.05.2021 suspended the impugned Ordinance (Ordinance VIII of 2021) to the extent of section 5, whereby, section 31 of Azad Jammu and Kashmir Election Act, 2020 has been amended, till next date of hearing, and this Court has not issued any order for restraining the concerned authorities/Legislature from further legislation. It is settled principle of law that the Legislature is competent to make a law, has ample powers of F legislation. This view finds support from a case titled "Molasses Trading and Export
(Pvt) Ltd. v. Federation of Pakistan' and others" (1993 SCMR 1905). The relevant caption is reproduced as under:-- "It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore, vested right can be taken away by such a legislation and it cannot be struck down."
34. The record also postulates that the petitioner, Mian Muhammad Shafique, in Writ Petition No.1736-A/2021, submitted his resignation on 12.08.2020 before Secretary, AJ&k Legislative Assembly Muzaffarabad, which was accepted and vide order dated 08.09.2020, he was relieved from service w.e.f. 01.09.2020. It clearly reflects from the resignation submitted by petitioner; Mian Muhammad Shafique that he resigned from his job for his personal engagement and not for contesting or participating in the General Elections, 2021.Therefore, neither the petitioner is an aggrieved person nor he has locus standi to file the instant writ petition.
35. Similarly, in Writ Petition No.1793/2021, the petitioner Raja Fateh Ullah Khan claimed that he resigned/left his service from the Local Govt. department on 30.09.2020, whereas his actual retirement date was of 01.01.2024 but for contesting the election, got early retirement from his service, but he failed to produce his resignation from which it can be determined that he got retirement for contesting elections, thus, the claim of the petitioner being weightless cannot be considered. Resultantly, no relief can be extended in favour of petitioner.
36. Likewise, in Writ Petition No.2055/2021, petitioner-Ch. Muhammad Khalique-uz-Zaman was retired from service on 16.03.2020 after attaining age of superannuation, whereas, in Writ Petition No.2143/21, petitioner Muhammad Siddique Raja was retired as Principal B-19 from Govt. Degree College Dudyal, on 08.11.2019, after attaining the age of superannuation, hence, under law, they are not eligible to participate' in the General Elections, 2021, therefore, at this stage, the claim of the petitioners cannot be considered.
37. It may be mentioned here that the judicial review regarding Legislature is subject to the certain conditions as laid down in the plethora of judgments of the Superior Judiciary. The learned counsel for the petitioners failed to, point out any illegality or irregularity in the impugned Ordinance/Act, therefore, the whole claim of the petitioners are not maintainable in the eye of law.
38. In light of what has been discussed above, finding no substance in the above titled writ petitions, the same stand dismissed with no order as to costs.
39. Before parting with the judgment it is observed that the instant cases pertain to division/larger bench but due to non-availability of the Judges, the cases have been taken up by me alone. This Court has already issued direction in case titled as "Kh. Aamir Ahmed v. Azad Government and others" (2021 YLR 1313) to the concerned authorities to complete the process for permanent appointment of Chief Justices as well as Judges of the Apex Court and this Court, but unfortunately the direction of this Court is not fully implemented, therefore, once again the concerned authorities are hereby directed to complete the induction process of the Judges of this Court without any further delay. The office is directed to send a copy of this Judgment to Secretary to the worthy President, Chief Secretary of Azad Jammu and Kashmir, Secretary Law, Justice, Parliamentary Affairs and Human Rights and Secretary AJ&K Council for compliance.