The captioned writ petition has been addressed Under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby notifications dated 20.10.2020 & 04.12.2020, charge sheet dated 04.12.2020 and all the proceedings initiated by respondents in furtherance of said notifications have been assailed.
The learned counsel for the petitioner reiterated the facts and grounds already taken in the writ petition by submitted that petitioner was serving as DIG Jail/Prison Azad Jammu & Kashmir. The learned advocate contended that this Court vide judgment dated 27.03.2020 ordered to release the prisoners subject to the conditions mentioned in the said order. The learned advocate further argued that the petitioner being DIG Prison Azad Jammu & Kashmir issued letter dated 28.03.2020 to Superintendents of Jails to implement the judgment of this Court dated 27.03.2020, whereupon vide notification dated 07.07.2020, respondents suspended the petitioner and constituted inquiry committee. He further claimed that inquiry committee sought explanation from the petitioner through a questionnaire dated .28.07.2020 which was replied on 03.08.2020. The learned advocate claimed with vehemence that inquiry committee submitted report and recommended that the petitioner violated Serial No. 5 Schedule No. 1 of Azad Jammu & Kashmir (Civil Services) Delegation of Administration Powers Rules, 2011, hence an inquiry officer may be appointed, consequently a notification dated 20.10.2020 was issued in the light of recommendations of inquiry committee qua Chief Secretary/Secretary Home Department was appointed as authorized officer and vide notification dated 04.12.2020 issued through Home Department, Secretary Industries, Labour and Mineral Resources was appointed as inquiry officer, thus the charge sheet was issued on 04.12.2020 by authorized officer. The learned counsel for the petitioner mainly pressed into service that the petitioner has not violated any law nor committed any misconduct rather only issued an order for the implementation of the Court order dated 27.03.2020, hence all the proceeding initiated against the petitioner are malicious, coram non-judice and void ab-initio, thus not sustainable, hence requested for the acceptance of the instant writ petition.
The learned AAG on the other hand vehemently controverted the sole argument that the writ petition entials dismissal for non-joinder of necessary parties as notification dated 07.07.2020 has been issued by the Services and General Administration Department but only Secretary Services and General Administration department has been arrayed as party whereas, Services and General Administration Department through its secretary has not been impleaded in line of respondents.
He further argued that impugned notification dated 04.12.2020 has been issued by Azad Jammu & Kashmir Home Department while Azad Jammu & Kashmir Home Department has also not been arrayed in the rank of respondents, thus the writ petition deserves to show the door on this sole ground. He placed reliance on 2016 SCR 887 and 2022 SCR 179.
In the precedents referred to any relied upon by the learned AAG, it has been laid down by the Honorable Supreme Court of Azad Jammu & Kashmir that according to the statutory provisions of Rules of Business, 1985, it is the finance Department which has to be consulted in finance matters and not its secretary, hence without arraying finance Department in the line of respondents, no effective direction can be issued where concurrence of Finance Department is required.
I have heard the learned counsel for the, parties, gone through the record of the case with utmost care and caution.
A perusal of record reveals that different bail petitions were filed before this Court for release of accused/convicts on bail due to enormous outspread of COVM-19. This Court vide order dated 27.03.2020 settled and resolved of the said petitions in the following manner: "1. The under trial prisoners involving offences under Qisas and Diyyat Act, imprisonment for life and the offences involving imprisonment for 10 years and above (with or without fine) shall be released on conditional bail for a period of 2 months. The period of 2 months may be extended till the time the situation returns to normaley.
2. The under trial prisoners detained in offences involving less than 10 years shall be released on bail provided they furnish surety and personal bonds.
3. Surety and personal bonds shall be furnished before the Sessions Judge of concerned district and the Judicial Magistrate on duty shall attest the bonds to his satisfaction.
4. This order shall not apply to the prisoners involved in offences under Antiterrorism Act. In the circumstances of the case, it is directed that a committee comprising Commissioner and Deputy Inspector General of Police of the Region shall scrutinize the cases under Antiterrorism Act on individual basis and submit its recommendations to the High Court keeping in view any threat to sovereignty of the State.
5. So far as the matters relating to convict prisoners, the concerned authorities may consider release of said prisoners on parole in accordance with Prisons Rules, because a prisoner whose order of conviction has attained finality does not fall within the ambit of this order. A copy of this order shall be furnished to all the concerned authorities including Chief Secretary, IG Police, DG Health, Commissioners, DIGS of all the three regions, District and Sessions Judges for compliance and further proceedings."
The petitioner vide letter dated 28.03.2020 addressed to Superintendents Jails Muzaffarabad, Mirpur, Kotli, PaHandri, Rawalakot, Bagh and Bhimber 'directed to prepare a list of prisoners and furnish the same to the concerned District and Sessions Judges, Judicial Magistrates and submit compliance report to the office of petitioner after implementation of the judgment. On this letter, respondents suspended the petitioner vide notification dated 07.07.2020 and initiated the impugned inquiry proceedings. The charge sheet dated 04.12.2020 against the petitioner portrays that he has violated provisions of Serial No. 5 of Schedule-I of the Azad Jammu & Kashmir (Civil Services) Delegation of Administrative Powers Rules, 2011 as legal opinion of Law Department was required before implementation of order of this Court, hence failed to exercise due diligence. Serial No. 5 of Schedule-I of the Azad Jammu & Kashmir (Civil Services) Delegation of Administrative Powers Rules, 2011 postulates that Administrative Secretary is authorized in matters for execution of judgment/decree with concurrence of Finance Department where public finance is involved. For ready reference Serial No. 5 of Schedule-1 of the Azad Jammu & Kashmir (Civil Services) Delegation of Administrative Powers Rules, 2011 is reproduced here under: Sr.# Nature of Functions Authority To Whom Powers DelegatedExtent of Powers 5 Implementation of judgment/satisfaction of Court decreeAdministration Secretary with concurrence of finance department in matter wherein public finance is involved for due execution of the judgment/decreeFull powers when the judgment/decree acquired finality in case of not filing of appeal in consultation with law department.
The above reproduced provision of law comes into force where public finance is involved for execution of judgment/decree but no such public finance was involved while implementing the judgment of this Court dated 27.03.2020, thus the allegation levelled against the petitioner seems to be entirely sine any foundation. The Court in daily routine announces judgments for release of accused and the accused persons set free by Superintendent of Jail, DIG has got no concern with the same whatsoever and issuance of letter dated 28.03.2020 by the petitioner for implementation of judgment of this Court cannot be termed as misuse of powers or any negligence on his part, so the notification dated 07.07.2020 and all the proceedings in furtherance thereof are anomalous and liable to be set at naught as the petitioner has been victimized sine any plausible or valid reason rather he has issued the letter dated 28.03.2020 in the best interest of justice to implement the judgment of this Court.
As far as the main objection raised by the learned AAG that necessary parties have not been impleaded in line of respondents, hence the writ petition entails dismissal for non-joinder of necessary party has got no water to carry. The learned AAG in support of his submission has placed reliance on 2016 SCR 887 and 2022 SCR 179. As stated earlier in both the referred cases, the Honourable Supreme Court of Azad Jammu & Kashmir has held that in the matters where concurrence of Finance department is required mere impleading Secretary Finance without impleading Finance Department is not sufficient and the lis entails dismissal for non-joinder of necessary party. I have no quarrel with the rule of law laid down by the Supreme Court of Azad Jammu & Kashmir in the cited cases however, in the instance case, the controversy in hand is quite divergent as no direction has been sought to the Services and General Administration Department or to the Azad Jammu & Kashmir Home Department 'rather notification dated 07.07.2020 issued by Azad Govt. Through Services and General Administration Department, notification dated 20.10.2020 issued by Prime Minister (Competent Authority) through Services and General Administration Department, notification dated 04.12.2020 issued through Azad Jammu & Kashmir Home Department and all the proceedings in furtherance thereof have been assailed, hence neither the Services and General Administration Department nor Azad Jammu & Kashmir Home Department was necessary party, thus impleading Azad Government through Secretary Services and General Administration Department is a sufficient compliance of law. The necessary party is a party in whose absence, no effective writ can be issued, however, in the instant case relief claimed for may be granted to the petitioner without impleading Services and General Administration Department as well as Azad Jammu & Kashmir Home Department in line of respondents. Under Rule 4 of the Azad Jammu & Kashmir Rules of Business (Revised), 1985 Secretary Services and General Administration Department is the official head of department being responsible for its efficient, administration, discipline and for the proper conduct of business assigned to the department under the relevant rules, hence impleading Secretary Services and General Administration Department in the line of respondents is adequate and sufficient for the purpose of bringing stance of the department on record regarding impugned notifications issued through Services and General Administration Department. Similarly Secretary Home department has also been arrayed as party who may bring the stance of department regarding impugned notification issued through Home Department, thus, in these circumstances, it cannot be held that the C instant writ petition is hit by the principle of non-joinder or mis-joinder of necessary party.##TEs## Even otherwise, law prefers the decisions of the controversies on merits and discourages technical knockout as purpose behind legal and codal formalities because the procedure is nothing but to ensure the safe administration of justice and to thwart the jeopardize of miscarriage of justice.
Reliance may be placed on PLD 1963 SC 382, wherein it has been observed as under: "I must confess that having dealt with technicalities for more than forty years out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we giving effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
The same tenet has been persisted by the Honourable Supreme Court of Azad Jammu & Kashmir in PLD 2009 SC AJK 1 and observed as under: "9. It is to be noted that even otherwise all the rules of procedure are meant for sake of administration of justice and they have to serve this very purpose. The technicality of procedure should not be considered for thwarting the intention of law. The basic purpose of procedure in the system of administration of justice is to help and not to thwart the grant of rights to the people. The technicality should be avoided. This view finds support from a case reported as Alam Din alias Alam Sher and 3 others v. Alam Din PLD 1990 SC (AJK) 1, wherein at page 13 it has been observed as under: "---I think the proper place of procedure in any system of administration of justice to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be system that gives to every person what is his."
The aforesaid law view finds support from another case reported as Ch. Muhammad Aslam Khan v. Malik Sher and 2 others 1992 CLC 196, wherein at page 196 it was held that all rules of procedure are intended to aid and assist the main cause of justice."
My this view finds further support from 2021 YLR 924 and 2022 CLC 920. After going through the above referred judgments of the superior Courts it can be concluded that merely on mechanical sediment, justice should not be sacrificed on the altar of technicality, which does not hit the roots of the matter, in so far as the fairness thereof is concerned.
The crux and epitome of the above discussion is, the instant writ petition is hereby accepted and notifications dated 20.10.2020 04.12.2020 and all the proceedings in furtherance thereof are hereby extinguished.