1. ' Sahibzada Muhammad Ishaque Zaffar, who is, in pursuance of section 9 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, performing the functions of the President of Azad Jammu and Kashmir since that august office fell vacant due to the resignation of Sardar Muhammad Abdul Qayrun Khan, has filed a reference under section 46-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, hereinafter referred to as the Constitution Act. In the reference the President has sought the opinion of this Court in respect of certain questions of public importance which are included in paragraphs (a) to (e). However, four of these paragraphs contain more than one question.
2. ' Apart from the request that those questions may be answered by this Court there is a request for interim relief which is contained in the last two paragraphs of the reference. These two paragraphs run as under:-- "In the meantime it is requested that no further action be taken by the Chief Executive and the Chief Election Commissioner in respect of Elections June, 1991.
3. ' It is further prayed that till the disposal of the reference, an order be issued prohibiting the calling of the Session of the Assembly, the publication of notification of the members of the Assembly, the Elections of the Speaker, Deputy Speaker, Prime Minister etc. Any other interim relief deemed just and appropriate and any directions to avert the Constitutional crisis be passed."
4. ' The reference itself is pending completion in the Registry but since the prayers made in the two paragraphs reproduced above are of urgent nature the same have been placed before me for immediate disposal by me as a Vacation Judge.
5. ' I have heard Mr. Aitzaz Ahsan in support of the prayer. In his elaborate arguments the learned counsel mainly prayed that an order be issued prohibiting the holding of the session of the Legislative Assembly which is being held a day after tomorrow, namely, 29th of July, 1991. In fact this prayer in effect means that the Assembly should be stopped from electing a Prime Minister as well as the Speaker and Deputy Speaker of the Legislative Assembly.
6. ' In his detailed arguments Mr. Aitzaz Ahsan submitted that, as he put it, a 'constitutional anarchy' has been created due to the fact that the elected Prime Minister of Azad Jammu and Kashmir Mr. Mumtaz Hussain Rathore, as claimed by him, was unconstitutionally removed from the office, by the Government of Pakistan in purported exercise of powers under section 56 of the Constitution Act and consequently Mr. Justice Sardar. Muhammad Ashraf Khan, a Judge of this Court, who was acting as Chief Justice of the Court in absence abroad of the learned Chief Justice, was appointed as a Chief Executive. The learned counsel submitted that there were only three ways in which the office of the Prime Minister could become vacant, namely, by resignation, by death or by no- confidence and there is no other manner in which the Constitution Act contemplated the removal of the Prime Minister. Similarly, it was contended by the learned counsel that it is specifically provided in the Constitution Act that a person who is a member of the Assembly and is elected as Prime Minister by the members of the Legislative Assembly would be the Chief Executive of the Azad Jammu and Kashmir. The Constitution Act does not visualize that a person should be a Chief Executive without being a Prime Minister. The learned counsel contended that section 7 of the Constitution Act lays down that the President of Azad Jammu and Kashmir has to act on advice of the Prime Minister and not on the advice of a Chief Executive, who is an alien to the Constitution Act. Therefore, the President is faced with a constitutional crisis which is one of the reasons which has pursuaded the President to file the reference. He also submitted that under section 52 of the Constitution Act a Prime Minister cannot hold any other office of profit while the Chief Executive was also a Judge of this Court as well as the Chief Election Commissioner. Mr. Aitzaz Ahsan further submitted that out of the questions which have been referred to this Court one important point is that after having become the President of Azad Jammu and Kashmir under section 9 of the Constitution Act Sahibzada Ishaque Zaffar is to continue till another President is elected and even if a new Speaker is elected. If the Legislative Assembly meets on 29th of July and elects a Speaker it is understood that the new Speaker would also be asked to become the President. In this view of the matter, according to the learned counsel, another violation of the Constitution would take place which necessitated the issuance of an interim relief.
7. ' The learned counsel submitted that section 42-A which empowers the Court to issue such directions, orders or decrees as may be necessary for doing justice in any case or matter pending before it, gave sufficient powers to the Court to grant the interim relief being prayed by him. Mr. Aitzaz Ahsan referred to various references answered by the Supreme Court of Pakistan as well as this Court to show that all parties who may have any interest in the outcome of the reference are heard before a reference is answered. He contended that when a reference is heard there is judicial adjudication of the points which are subject-matter of a reference and no opinion is expressed by the Supreme Court without hearing the parties which are likely to be affected.
8. According to him it was thus clear that a reference fell within the ambit of the word "matter" used by the Constitution makers in section 42-A. He did not cite any decided case in which an interim relief was granted in a reference.
9. ' I have given my anxious thought to the submissions of the learned counsel appearing in support of the President's reference and have reached the conclusion that there is no substance in the arguments that this Court has the power to issue an order in the shape.Of interim relief while hearing a reference. Section 46-A of the Constitution Act which provides for making a reference runs as follows:-- ' to obtain the opinion of the Supreme Court of Azad Jammu and Kashmir on any question of law which he considers of public importance, he may refer the question to the Supreme Court of Azad Jammu and Kashmir for consideration.
(2) The Supreme Court of Azad Jammu and Kashmir shall consider a question so referred and report its opinion on the question to the Chairman of the Council or, as the case may be, the President."
10. A plain reading of the above section shows that this Court has only to give its opinion on the question referred to it and there is no judgment or order which can be passed by this Court while answering a Presidential reference. An opinion expressed in a reference is not a decision of the Court. Word "opinion" used in section 46-A reproduced above is in sharp contrast to the words "directions", 'orders" or "decree" used in section 42-A of the Constitution Act which has been relied upon by Mr. Aitzaz Ahsan. The word "opinion" is also in similar contrast to the word "decision" used in section 42-B of the Constitution Act which runs as follows:- "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."
11. ' Although precedent exists that the Azad Jammu and Kashmir High Court issued a direction prohibiting the Azad Jammu and Kashmir Legislative Assembly from holding the session on a writ petition filed by Sardar Muhammad Abdul Qayyum Khan in 1975 but there is no recorded case in which an interim relief was ever granted in a reference.
12. A Court of law grants relief when it decides a case and it grants an interim relief during the trial of that case. It is clear from section 46-A that no relief can be given by this Court under that Constitutional provision and all that it can do is to express an opinion on a question of law of public importance. When the Court cannot grant a relief when it decides a reference I am unable to accept the proposition that an interim relief can be granted by this Court. It thus appears that this Court has no power to grant an interim relief while hearing a reference and I hold accordingly.
13. ' So far as the question incorporated in the Presidential reference are concerned they have been considered to be matters of public importance by the President of Azad Jammu and Kashmir and this Court is bound to answer those questions after fulfilling the legal procedure. The opinion to be formed by this Court shall be in accordance with the Constitution and law. However, for the time being no case has been made out for an interim relief.