1. ' BASHARAT AHMAD SHAIKH, J.---Col. (Rtd.) Muhammad Naqi Khan was elected in 1985 as a member of the Azad Jammu and Kashmir Legislative Assembly. In the elections he participated as a candidate of Tehrik-e-Amal Party. After the elections All Jammu and Kashmir Muslim Conference having obtained majority in the Assembly formed the Government with Sardar Sikandar Hayat Khan as Prime Minister. Members belonging to the Tehrike-e-Amal Party sat on the opposition benches. On 9th of June, 1988 Col. (Rtd.) Muhammad Naqi Khan was inducted in the Cabinet. Kh.
2. Noor-ul-Amin, Barrister-at-Law, who described himself as a registered elector, an Income-tax payer, an office-bearer of the Jammu and Kashmir Liberation League as well as an Advocate of this Court, lodged a petition in the High Court for issuance of a writ of quo warranto against Col. (Rtd.) Muhammad Naqi Khan on 15th June, 1988. In his writ pefition Khawaja Noor-ul-Amin contended that subsection (3) of section 5 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 had operated against the respondent simultaneously with his taking oath as Minister and consequently he had ceased to be a member of the Legislative Assembly. It was contended by Kh. Noor-ul-Amin that by becoming a Minister he had 'withdrawn' himself from Tehrik-e-Amal Party within the meaning of subsection (3) mentioned above. This subsection runs as follows:-- "(3) if a person having been elected to the AJ&K Legislative Assembly as a candidate or nominee of a political party, withdraws himself from that party, he shall from the date of such withdrawal, be disqualified from being a member of the Assembly for unexpired period of his term unless he has been re-elected at a by-election held after his disqualification."
3. ' In clause (v) of para.7 of his writ petition the petitioner contended as follows:--
(v) that the respondent cannot by any stretch of legal imagination be considered to have been inducted as a Minister in the Muslim Conference Cabinet while continuing to remain a member of the Tehrik-e-Amal, the two positions being utterly incompatible and irreconcilable leading to an insurmountable conflict of interests between his obligations towards his constituents as a member of the Tehrik-e-Amal and elected to the legislature as such and his constitutional obligations as a Minister of the Muslim Conference. The scenario is further compounded and exacerbated by the stark reality that there is currently a confrontationist polarisation between the respondent's party the Tehrik-e-Amal and the ruling party, the Muslim Conference."
4. ' In his written statement Col. (Rtd.) Muhammad Naqi Khan took the position that he had been appointed as a Minister in his capacity as a member of the Legislative Assembly under section 14(1) of the AJ&K Interim Constitution Act, under which the Prime Minister has been given unfettered powers to appoint any member of the Assembly as a Minister and there was thus no question of any disqualification as alleged.
5. ' The High Court by its judgment recorded on 21st April 1990 accepted the writ petition and declared that Col. (Rtd.) Muhammad Naqi Khan ceased to be a member of the Legislative Assembly on the day he assumed the office of Ministership on 9th of June, 1988 as this act amounted to 'withdrawal' from his political party. As only a member of the Legislative Assembly can become or continue as a Minister, the High Court also declared that he also ceased to be a Minister forthwith. The High Court also declared that all actions, orders and functions performed by the respondent as Minister were without force of law.
6. ' Against the judgment of the High Court Col. (Rtd.) Muhammad Naqi Khan filed a petition for leave to appeal which was granted. Arguments in the appeal were heard but before the judgment could be announced Col. (Rtd.) Muhammad Naqi Khan died in a road accident during the election campaign for the Assembly elections held in May, 1990. Thereupon this Court, taking note of the fact that the matter had become more or less academic in nature so far as the deceased appellant was concerned, formed the view that the appeal had abated and an order to that effect was recorded on 23rd of May, 1990. In that order it was clarified that the judgment of the High Court would stand.
7. ' However, the matter did not end there. On 21st of June, 1990 the Azad Government of the State of Jammu and Kashmir filed a petition for leave to appeal for the purpose of challenging a portion of the judgment of the High Court so far as it concerned the Government. The Government was not a party in the proceedings before the High Court and subsequently in this Court but it was averred in the petition for leave to appeal that the Government had been adversely affected by the declaration that Col. (Rtd.) Muhammad Naqi Khan had no authority to act as a Minister of the Government. The short prayer in the petition is that this portion may be expunged from the judgment. The legal representatives of Col. (Rtd.) Muhammad Naqi Khan were also included in the petition as pro forma-respondents. While granting leave the question whether the Government could appeal from the order of the High Court was left open for adjudication at the final hearing.
8. ' We have heard Raja Muhammad Hanif Khan, the learned counsel for the Azad Government of the State of Jammu and Kashmir, in support of the appeal. Kh. Noor-ul-Amin, on whose instance the offices held by Col. (Rtd.) Muhammad Naqi Khan as a Minister and member of the Assembly were declared vacant, was absent and we heard the arguments ex parte. However, the legal representatives of Col. (Rtd.) Muhammad Naqi Khan were represented before us by Mr. Manzoor Hussain Gillani and he duly assisted the Court.
9. ' The first point which needs to be resolved is whether the Government, which was not a party before the High Court, could legally appeal against the said order. We note that the observations which are sought to be expunged have direct bearing on the working of the Government. As a Minister of the Government Col. (Rtd.) Muhammad Naqi Khan participated in formulation of numerous policies of the Government which is collective responsibility of the Cabinet of which he was a member. According to section 12 of the Arad Jammu and Kashmir Interim Constitution Act, the executive authority of AJ&K vests in the Government consisting of Prime Minister and the MinisteRs, Then there are certain functions which are performed by a Minster acting on behalf of the Government. Therefore, it is clear that the declaration that all actions and functions performed by late Minister were unlawful adversely affects the interests of the Government. In that view of the matter the Government has a right to appeal against the judgment of the High Court in spite of the fact that it was not a party in the High Court. Our view is fortified by H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65) and Ghulam Qadar and others v. Abdul Sattar and another (PLD 1984 SC 12).
10. ' The controversy involved in the appeal has to be resolved in light of the jurisdiction vested in the High Court under section 44 of the AJ&K Interim Constitution Act. As we have already seen the Constitutional petition filed by Kh. Noor-ul-Amin was for issuance of, as it is commonly known, writ of quo warranto. In the Constitution Act the provision for a writ of quo warranto is contained in sub- clause (ii) of clause (b) section 44(2). Before analysing the provision it will be useful to produce section 44 of the AJ&K Interim Constitution Act: "44. Jurisdiction of High Court.---(1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.
(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law--
(a) On the application of any aggrieved party, make an order--- (0 directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or
(ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or
(b) on the application of any person, make an order,--
(i) directing that a person in custody in Azad Jammu and Kashmir be brought before the High Court so that the Court may satisfy itself that fie is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold that office; or
(c) ......
11. It is clear that while acting under sub-clause (ii) of clause (b) above, the High Court has to confine its inquiry as to the authority of law under which the concerned person claims to hold that office.
12. There is no other power which is conferred by this clause on the High Court. If after necessary inquiry the High Court comes to the conclusion that the respondent before it does not have the lawful authority to occupy that office the High Court can make a declaration to that effect whereupon the office so held becomes vacant. The Supreme Court of Pakistan held in Masudul Hassan v. Khadim Hussain and another (PLD 1963 SC 203) that powers of granting relief in proceedings of quo warranto are confined to--
(a) issuing an injunction to a person holding the office not to act therein, and
(b) where necessary, to declare the office to be vacant.
13. ' There is nothing in sub-clause (ii) from which the High Court may derive the authority to travel beyond the limits as enunciated above. The question whether an act done by a person whose authority to hold an office is under challenge was lawful or not is not within the purview of this provision. There is a separate provision under which the High Court is clothed with the authority to declare that an act done or proceedings taken in connection with the affairs of the State has been done or taken without lawful authority and is of no legal effect. This power is referable to clause (a) of section 44(2) reproduced above.
14. ' Under this clause the High Court can issue writs in the nature of mandamus and certiorari but these writs can only be issued on the application of an aggrieved party while there is no such pre- condition in respect of a writ of quo warranto and habeas corpus which the High Court can issue under clause (b) reproduced earlier. In the present case the petitioner before the High Court Kh.
15. Noor-ul-Amin was not aggrieved by any act done or proceedings taken by Col. (Rtd.) Muhammad Naqi Khan in his capacity as a Minister and, therefore, a writ in the nature of certiorari could not have been issued by the High Court on his request. We note that in fact no such prayer was made by Kh. Noor-ul-Amin in the writ before the High Court. The prayer made by Kh. Noor-ul-Amin in his writ petition was as follows:-- "It is, therefore, prayed that the Constitutional writ of quo warranto be issued against the respondent and it be ascertained as to how or under what law he has purported to assume the Constitutional office and authority of a Minister."
16. The declaration made by the High Court was in general terms and all the actions, orders and functions performed by Col. (Rtd.) Muhammad Naqi Khan as a Minister were declared without force of law. We are clear in our mind that such an omnibus declaration cannot be granted in exercise of the jurisdiction granted under clause (a) reproduced above. Its exercise is, apart from the phraseology of section 44 of the Constitution Act, regulated by Part B of Chapter VIII of the Azad Jammu and Kashmir High Court procedure Rules. Rule 32 applies to writ petitions and is to the following effect:-- "PART B-MANDAMUS, PROHIBITION, CERTIORARI, QUO WARRANTO ETC. 32.---(1) An application under section 44 of the Constitution for a direction, order or writ in the nature of mandamus, prohibition, certiorari, quo warranto etc., other than a writ in the nature of habeas corpus shall be filed before the Deputy Registrar.
(2) The application shall set out the name and description of the applicant, the exact nature of the relief sought and the grounds on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexures if any, in addition to a separate copy for each one of the respondents. The annexures accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall be properly indexed."
17. The above would show that exact nature of a relief sought by the petitioner has to be specified in the application and also that a certified copy of the impugned order has to be attached with the petition. This provision is fully backed by the consistent practice that a writ petition is only entertained if a copy of the impugned order is attached with it. It cannot be ruled out that in certain extraordinary circumstances the production of certified copy of the impugned order may be dispensed with but such a relaxation can only be justified if there are compelling reasons for doing so. In the present case no copy of any order was before the High Court. In fact any such order or action was not brought to the notice of the High Court. Therefore, the High Court was not competent to quash orders which were not produced or challenged before it.
18. ' Before parting with the case we may point out that "de facto doctrine" which has been given due recognition by the Courts of law is not only applicable to a Judge but it also applies to certain office Rs, Under the doctrine the contravention of a Constitutional provision may invalidate an appointment but the acts done and functions performed by a person who held that office acting under the colour of lawful authority continue to be valid and effective. This doctrine has recently been applied by this Court in Amjad Hussain and others v. Ghulam Rasool Mir (Criminal Appeal No,6 of 1990). It is not, therefore, necessary that the 'actions of Col. (Rtd.) Muhammad Naqi Khan as Minister of the Government may be declared invalid if and when challenged. However, since this matter is not directly before us, we leave this aspect of the matter open to be examined where it falls for determination.
19. As upshot of the above discussion, we accept the appeal filed by the Azad Government of the State of Jammu and Kashmir and order that the following words occuring in para.14 of the judgment of the High Court shall thus stand expunged: "Thus all actions, orders, functions performed by the respondent as Minister are without force of law."
20. ' It was prayed by the learned counsel for the Government as well as by Mr. Manzoor Hussain Gillani, appearing for legal representatives of Coil. (Rtd.) Muhammad Naqi Khan, that the order of the High Court may be modified to the extent that the order may be made effective from the date on which it was announced and not from the date on which Col. (Rtd.) Muhammad Naqi Khan was sworn as Minister. We have gone through the judgment of the High Court and we note that the High Court has not held, except in the portion which we have ordered to be expunged, that Col. (Rtd.)
21. Muhammad Naqi Khan ceased to be a Minister on the date on which he was sworn in as such. After expungment, as ordered above, there remains no other reference which needs to be expunged or modified.