' SYED MANZOOR HUSSAIN GILANI, J.---The above-captioned petitions raise identical points of fact and law, hence are decided by this single judgment.
2. The brief common facts as stated in all the petitions are that all the petitioners hail from different areas of the State of Jammu and Kashmir, now under the unauthorized control of the Government of India. They came to Azad Kashmir, the liberated part of the State of Jammu and Kashmir, on different dates. Petitioner Ghulam Hussain migrated to Azad Kashmir along with his family in 1990, and is residing at Kairni, in Bagh District. The other two petitioners travelled to Azad Kashmir on Indian Passports No. 737402 dated 29-10-1985 and No. 789441 dated 16-10-1986 with a Pakistani Visa No.RC 4675 dated 27-1-1988 and No.RC 18952 of 1988 dated 13-4-1988 respectively. The latter two petitioners applied for permission for permanent settlement in Azad Kashmir. Both are refused the permission to surrender their Indian Passports and settlement in Azad Kashmir and are ordered to leave the territory as stated in the written statement filed in both the cases and the same is borne out from different documents placed before the Court.
3. Under the apprehension that the petitioners are likely to he deported, they have invoked the jurisdiction of this Court for an appropriate writ against the respondents restraining them from pushing the petitioners back to the territory of the State under Indian occupation.
4. As far as the case of petitioner No.1 is concerned, the apprehension of the petitioner is not admitted by the respondents and the Advocate-General has also stated at Bar that no action is taken against the petitioner, neither is any such action in process. Hence his petition does not require any action. However, the decision in case of other petitioners shall determine the status and rights of the petitioner No.1 as well, of a State Subject.
5. In their written statement, the respondents have admitted the entry of Petitioners Nos. 2 and 3 from Indian-held Kashmir into Azad Kashmir on Indian Passport with a Pakistani Visa and it is also admitted that they are refused the permission to settle in Azad Kashmir and their right to reside or settle in Azad Kashmir is also denied. The petitioners' apprehension of being pushed back is also admitted by the respondents. They have rather asserted their authority for such an action. (It may be mentioned here that the word "PUSH BACK" is used for the deportation in Azad Kashmir).
6. We have heard the learned counsel for the parties and have gone through the record of the case. The main contention of the learned counsel for the petitioners is that the petitioners are State Subjects as their residence which is entered in the Indian Passport on which they have travelled to Pakistan unambiguously falls in Jammu and Kashmir and the Visa in their favour is also issued by the Government of Pakistan on the same address. Elaborating their arguments, it is submitted that issuance of Indian Passport and Pakistani Visa on the address leaves no doubt that they are State Subjects, as Passports and Visas are issued by the respective Governments after fully satisfying themselves of the entries in the application for Passports and Visas.
' It is also argued that the claim of the petitioners to be State Subjects and entries of their residence in State in Passport and Visa are not denied nor is the affidavit of the petitioners submitted in this behalf controverted. It is also argued that the agencies of the Azad Kashmir Government had recommended the case for their permanent settlement in Azad Kashmir after satisfying themselves about the genuineness of the claim of the petitioners that they are State Subjects and that under the circumstances prevailing in Occupied Kashmir, it would not be safe for them to be pushed back. According to the learned counsel, a State Subject, has inalienable right to reside and settle at any place of his choice in Azad Kashmir and that every one is entitled to equal protection of law under section 4(4)(5) and 4(4)(15) of the Interim Constitution Act, 1974 (Hereinafter to be referred as Constitution). In support of his contention, the learned counsel has referred to an unreported judgment of this Court captioned as "Abdul Hamid v. Azad Government and others" decided on 6-5-1993.
7. Raja Muhammad Hanif Khan, who represented the Government of Pakistan addressed the main arguments and the Advocate-General endorsed the same. The learned counsel for the respondents opposed the petitions on the ground that the extension of Vi or ordering a person to leave Pakistan is within the competence of Ministry of Interior, GOP and AJ&K. High Court has got no jurisdiction to issue writ of any nature against Government of Pakistan. The learned counsel for the respondents further argued that the petitioners have lost the status of State Subject as they hold Indian Passports and are thus foreigners i.e. Indian Nationals and not entitled to protection of any law in Azad Jammu and Kashmir.
8. The sheet anchor on which hinges the fate of the petitioners is as to whether a State Subject resident of occupied part of the State entering AJ&K on Indian Passport or otherwise is a foreigner?
The resolution of this question depends upon the definition of State Subject under the Constitution.
9. The term "State Subject" is defined in section 2 of the Constitution as follows: " 'State Subject' means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No. I-L/84, dated the 20th April, 1927 as amended from time to time."
The Notification No. I-L/84, dated 20th April, 1927 referred above, amended from time to time is as follows: "The term 'State Subject' means and includes: ' Class I. All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur, and also persons who settled therein before the commencement of Samvat year 1942, and have since been permanently residing therein; ' Class II. All persons other than those belonging to Class I who settled within the State before the close of Samvat year 1968, and have since permanently resided and acquired immovable property therein; ' Class III. All persons, other than those belonging to Classes I and II permanently residing within the State, who have acquired under a Rayatnama any immovable property therein or who may hereafter acquire such property under an Ijazatnama and may execute a Rayatnama after ten years continuous residence therein; ' Class IV. Companies which have been registered as such within the State and which, being companies in which the Government are financially interested or as to the economic benefit to the State or to the financial stability of which the Government are satisfied, have by a special order of His Highness been declared to be State Subjects.
' Note matter of grants of State Scholarships, State lands for agricultural and house building purposes and recruitment to State service, State Subjects of Class I should receive preference over other classes and those of Class II over Class III, subject, however, to the order dated 31st January 1927, of his Highness the Maharaja Bahadur regarding employment of hereditary State Subjects in Government service; ' Note II.--The descendants of the persons who have secured the status of any Class of the State Subjects will be entitled to become the State Subjects of the same Class. For example, if A is declared a State Subject of Class II, his sons and grandsons will ipso facto acquire the status of the same Class II and not of Class I.
' Note III.--The wife or a widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same class as her husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.
' Note IV.--For the purposes of the interpretation of the term 'State Subject' either with reference to any law for the time being in force or otherwise, the definition given in this notification as amended up to date shall be read as if such amended definition existed in this Notification as originally issued."
10. The authority to make laws relating to acquisition or loss of State Subject, is vested in Azad Kashmir Council under Item I of 3rd Schedule of the Constitution. However, the law defining the various categories of State Subjects remains the same as referred above. And all the laws made or to be made by the Council shall have to correspond to the above definition and Notifications referred therein. Any action of the Council, the GOAJ&K or the I GOP derogatory to the above provisions is a nullity.
11. The events relating to the State of J&K are a matter of public history and every Court has to take judicial notice of the fact that the State was a single and compact geographical and political unit till 1947, when a part of the State now named as 'Azad Jammu & Kashmir' was liberated and the other part of the State is under the illegal occupation of India. The people of the State as a whole are yet to determine their future status in accordance with the UN Resolutions. Till such time, as the people of the State decide their future under fair and impartial plebiscite to he held under the UN supervision, they shall retain their status of being State Subjects, whether they reside in the territories under the control of India or of Pakistan or anywhere in the world. It is also a matter of public history that people of the State under Indian occupation travel around the world on Indian Passport, while the people in Azad Kashmir travel on Pakistani Passport. This temporary arrangement shall, as a matter of fact continue and shall have to continue, till the fate of these unlucky people is finally decided.
12. Now whether a State Subject holding Indian Passport or for that matter Pakistani Passport, loses his status of being a State Subject and becomes a foreigner by holding a Passport of any of the two countries. It is a question which has to he resolved by resorting to the definition of foreigner.
The term 'Foreigner' was defined under section 2 (a) of the Foreigners Act, 1952. The section to the extent relevant is as follows: "2. In this Act.--(a) 'Foreigner' means a person who is not--
(i) Subject of Jammu & Kashmir State; (ii)
(iii) ........
' The Foreigners Act, 1952 was replaced by Foreigners Act of 1946 through AK Adaptation of Laws Act, 1959 (Act I of 1959). However, the definition of the term 'foreigner' remained the same as under previous law, i.e. Foreigners Act of 1952. The relevant part of section 3 of the Adapatation Act, 1959 is as follows: "3(iii) The expressions 'evacuee', 'evacuee property', 'refugee' and `foreigner' shall have the same meanings as are assigned to them under any previous law." and as reproduced above, a State Subject is not a foreigner wherever he lives and Passport of whatsoever country he possesses.
13. The legislature in the good old days has not remained oblivious of the fact of status of State Subject residing around the World and the emigrants from and foreign nationals residing in the State. A Notification issued on 27th June, 1932 which is as follows: NOTIFICATION "(Issued by His Highness the Maharaja Bahadur dated Srinagar, the 27th June, 1932/14th Har, 1989 and published in Government Gazette dated 24th Har, 1989.)
' No. 13-L/1989. Whereas it is necessary to determine the status of Jammu and Kashmir State Subject in foreign territories and to inform the Governments of Foreign States as to the position of their nationals in this State; it is hereby commanded and not fit d for public information as follows:- -
(1) That all emigrants from the Jammu and Kashmir State to foreign territories shall be considered State Subjects and also the descendants of these emigrants born abroad for two generations: ' Provided that, these nationals of the Jammu and Kashmir State shall not be entitled to claim the internal rights granted to subjects of this State by the laws, unless they fulfil the conditions laid down by those laws and rules for the specific purposes mentioned therein.
(2) The foreign nationals residing in the State of Jammu and Kashmir shall not acquire the nationality of the Jammu & Kashmir State until after the age of 18 on purchasing immovable property under permission of an Ijazatnama and on obtaining a Riayatnama after ten years' continuous residence in the Jammu & Kashmir State as laid down in Notification No. 1-L of 1984, dated 20th April, 1927.
(3) Certificates of nationality of the Jammu and Kashmir State may, on application, be granted by the Minister In charge of the Political Department in accordance with the provisions of section 1 of this Notification." leaves no doubt that an emigrant from the State retains his status of State Subject till two successive generations.
14. Being a State Subject is a status, not a nationality strict() senso under the contemporary circumstances and this status is not lost by a State Subject by possessing the Passport of any country much less India and Pakistan who are in de facto control of 2/3rd and 1/3rd part of the State. The State Subjects living in either part of the State have no means of travelling around the world except through the Passport of the country where the part of their territory actually falls, without prejudice to their status of being State Subjects. Discussing the similar proposition as to whether a State Subject travelling on Indian Passport to Azad Kashmir is a foreigner, the Supreme Court of Azad Jammu And Kashmir has set the point at rest in the case reported as "PLD 1993 SC (AJ&K) 112, it is held: "Next it has been argued by learned counsel for that as the appellant was an Indian national he was not entitled to be enrolled as a pleader or an Advocate of the High Court. It has been argued that the relevant Legal Practitioners Rules envisage that a State Subject is entitled to be enrolled as a pleader or an advocate subject to the other conditions laid down therein. It has been argued that the question of appellant being a State Subject is not to be resolved in view of the Foreigners Act of 1946 rather it is to be determined in view of the relevant law. Under section 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the expression State Subject has been defined as under: " 'State Subject' means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the Late Government of State of Jammu and Kashmir Notification No. 1-L /84, dated 20th April, 1927, as amended from time to time.
' It is evident from the above Constitutional provision that in case of appellant, the question as to whether he is a State Subject or not is to be determined in view of Notification No.1-L/84 dated 20th April 1927. The status of the appellant as State Subject has not been disputed even by the relator in the memorandum of writ petition. No law has been cited that the appellant ceased to be a State Subject because he had come to Azad Kashmir on Indian Passport. The relevant fact for resolving the point involved is as to whether the appellant was a State Subject and not the question of his nationality in view of the provisions contained in the Foreigers Act or any other law for the time being in force."
The Passport, thus does not determine the nationality of the State Subject, but is a document which legalizes his international travel, without affecting his status of being State Subject.
15. The obtaining by a State Subject of Indian or Pakistani Passport is not out of one's free will, but per force and under the exigency of circumstances under which one is put in. The passport is not even treated as a proof of the nationality of a person whose residence admittedly falls in the settled territories forming part of India or Pakistan. We have a plethora of cases on the point. A few may be referred: ' PLD 1971 SC 179.--The respondents in the case were residents of Dacca, Pakistan, who migrated to India under a migration certificate obtained from Deputy High Commissioner for India in Dacca. In spite of the migration certificate obtained from Indian High Commissioner, which amounted to opting for Indian nationality, it was held that they had not lost the citizenship of Pakistan on their return back to Pakistan."
' In AIR 1957 A.P. 1047, it is held: "A passport is not the basis of legal evidence to establish the fact of citizenship but it only embodies a request to a foreign Government to allow the bearer free passage and to afford him every assistance and protection. That a passport is issued only by a Government to a citizen does not make it a document of title or a piece of evidence in a Court of law to establish that fact. It is only a convenient link in the chain of international intercourse."
' In AIR 1965 SC 1623, it is held that: "Obtaining of foreign passport cannot be regarded as conclusive proof of voluntary acquisition of foreigner citizenship in all cases."
' Similarly in a much similar and a case of identical circumstances reported as AIR 1974 J&K 48, when a State Subject resident of Skardu a part of State of Jammu and. Kashmir, travelled on Pakistani Passport to Srinagar, another part of the State, the Full Bench of the Court was pleased to direct the Central Go eminent of India not to deport the petitioner therein unless it was proved that he had acquired the nationality of Pakistan by losing the status of State Subject. Besides discussing the effect of Passport on nationality and admitting the State Subject living in both parts of the State as a single geographical entity and entire State as a part of India (under a fraudulent and hoax contention of accession of State to India) the learned Court was pleased to lay the following proposition for the Central Government of India to consider while making the inquiry in the case: "I have, however, pointed out above that even in the representation the plea has been taken clearly and categorically. In my opinion the Central Government while making the inquiry appears to have overlooked certain fundamental aspects of the grave issues involved in this case. So far there has not been a single case in any Court in India where a person while travelling from one part of India to another has had to obtain a Passport from a foreign country for travelling to that part. Decided cases deal with such cases where persons from India had migrated to Pakistan either before independence or after or returned to India on a Pakistani passport. Thus the present case has one clear distinction, and that is, whereas in other cases which came up before the Courts the person concerned had migrated to Pakistan and had actually resided there for a number of years before taking a Pakistani passport, the petitioner never migrated to Pakistan at all; he had travelled from one part of the country, namely Skardu, and has applied for the Pakistani passport even while he was residing at Skardu.
' Another unqiue aspect of the present case is that whereas in the case of all other persons they were to go back from the place from which they came which was a foreign country, in the instant case the petitioner had to go back to Skardu which is again a part of the territory of India. Thus the position is that the petitioner will have to be deported from Srinagar to Skardu, i.e. From one part of India to another. It was incumbent on the Central Government to consider these broad aspects carefully because they have got far-reaching consequences."
' Notwithstanding the unconstitutional and immoral contention of accession of the State to India, the fact remains that the State is accepted as an indivisible geographical unit and entry of a State Subject from one part of the State to the other part is not treated as an entry in a foreign country.
The GOAJ&K, the AJK Council or the GOP must also consider these broader aspects of a case before branding a State Subject as a foreigner on the mere possession of Indian Passport.
16. What is made out from the above discussion is that a State Subject cannot be deprived of his status of being a State Subject by his obtaining the Passport of India or Pakistan, unless he loses that status by any of the eventualities mentioned in the Notifications relating to State Subject as issued from time to time; and thus, a State Subject cannot be deprived of his right to reside and settle in any part of the State as guaranteed by section 4(4)(5) of the Constitution, of course subject to reasonable restrictions. The part of the State under the Indian yoke is a part of the State of Jammu and Kashmir, hence a resident of that part of the State is as good a State Subject as one residing in Azad Kashmir, as none of the two parts of the State is a foreign territory for the other. We are fortified by the following illuminating judgment of Mr. Justice Muhammad Yusuf Saraf (as his Lordship then was) reported as PLD 1970 Azad J&K 88: "The claim of the Azad Government is much stronger than even that of the Governments of Ferhat Abbas and Sihanouk because it is in effective control of 1/3rd of the State's total area. Therefore, the mere fact that its writ does not run in the entire State and there is therefore a limitation on its de facto authority for that area does not, in my opinion, affect its claim of being the only legitimate Government of the entire State. Forcible occupation of the better and greater part of the State by an invading army and perpetuation of this occupation against popular will and by turning the occupied area into a vast concentration camp, does not turn the occupied territory into a foreign country so far as the Azad Government of Jammu and Kashmir or Jammu and Kashmir nationals living on this side of the ceasefire-line are concerned. Kashmir has, strictly speaking, no parallel in the history of modern International law. Germany, Korea or Indo-China despite being divided have no parallel to the division of Kashmir. Here, even under the U.N. Resolutions to which India is committed the future of the State's accession to Pakistan or India has yet to be decided through a plebiscite. Azad Government rightly treats Indian occupation across the ceasefire line as a naked aggression. Same is the policy and stand of the Pakistan Government The United Nations also treats the Jammu & Kashmir State as a disputed territory whose accession to Pakistan or India has yet to be determined. In fact the de jure recognition of Indian occupation has remained and continues to remain, the main objective of the Indian Foreign Policy but the same has been repudiated not only by the Azad Government, Pakistan, many freedom-loving countries of the world but even by the United Nations which does not show Kashmir as part of India; it remains on its agenda.
' Under these circumstances it cannot be validly held that occupied territory across the 500 miles long uneasy ceasefire line is a foreign territory."
17. With the above, is disposed of the objection and contention of the Advocates, appearing for the respondents that the petitioners having obtained the Indian Passport, are foreign nationals. The argument of the learned counsel for the respondents that petitioners could be treated as State Subjects had they crossed the line of control withoilt passport, is not only fantastic, but bewildering as well. The petitioners are not claiming the right as refugees but as State Subjects. If a person crossing the line of control without proper documents establishing his identity as State Subject is treated as State Subject, why not a person whose record of identity is clear and is so accepted by issuing visa in his favour and by recommending his case for permanent settlement? Crossing the line of control without proper document is firstly risking one's life and secondly exposing oneself to the torture of interrogation and surveillance. After all, who knows who is who. And it is well said that:
18. The objection of the learned counsel for the respondents that the settlement of a person in Azad Jammu and Kashmir is to be ordered under the No-Objection of the Ministry of Interior, GOP, hence the High Court has no jurisdiction, is also misconceived. A State Subject needs no certificate of his being a State Subject from Ministry of Interior, GOP, as the subject relates to AJ&K Council, which is a part of the Azad Jammu and Kashmir State, and is subject to the jurisdiction of the Azad Kashmir Courts in all respects.
' However, the Defence and Security of AJ&K being the responsibility of GOP, the Ministry of Interior, GOP, figures in the affairs to the extent of security concerns of the State and country. If a State Subject from the occupied part of the State, entering Azad Kashmir is found involved in any of the activities prejudicial to the interest of Azad Kashmir or Pakistan or is found to be a security risk, he can be proceeded against under law as any other person residing in the liberated territory or in Pakistan. The Ministry of Interior, GOP, has, therefore, a role to play in Azad Kashmir to that extent, and while playing that role, it is performing its functions in connection with the affairs of Azad Kashmir. Even in that case, it is subject to the jurisdiction of High Court under section 44(4)(a)(i)(ii) and (c) of the Constitution, which reads as: "(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--
(i) 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 ' 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.
(c) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act."
19. The phraseology of 'performing functions in connection with the affairs etc.' also finds place in Article 199 of the Constitution of Pakistan and similar was the provision in the earlier Constitutions.
Discussing the scope of the phraseology, it is held in PLD 1975 SC 244, as follows: "Now, what is meant by the phrase 'performing functions in connection with the affairs of the Federation or a Province'. It is clear that the reference is to Governmental or State functions, involving in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and flanked by the State, i.e. The Federal Government or a Provincial Government.
However, in recent years, there . Has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that, free from the inhibiting effect of red tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable.
Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraphs, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province."
20. An order passed by an authority whereby a State Subject is deprived of his fundamental right of residence and settlement in Azad Kashmir is an order which affects the affairs of Azad Jammu and Kashmir, as the State has guaranteed the fundamental right to the State Subjects. Deportation of the petitioners is ordered by the Ministry of Interior, GOP and the order is to be given effect in Azad Jammu and Kashmir, hence the argument of the learned counsel suffers from inherent fallacy that the High Court has got no jurisdiction to issue writ of any nature against the Government of Pakistan. A person who has the power to exercise an authority in connection with the affairs of Azad Jammu and Kashmir, is also answerable before the High Court on the application of an aggrieved person if the authority exercised is found to be against the law. A right guaranteed under the Constitution has to be enforced by the Court of law established by the Constitution and for that purpose the Court has the power to call upon the person violating the right to act in accordance with the law and set his order right. Discussing the scope of High Court's jurisdiction in relation to Government of Pakistan, it is held by the Full Bench of the AJ&K High Court in the Gilgit case reported as PLD 1993 Azad J & K 1 as: "It has been held elsewhere that the scheme of the Act, divided the exercise of executive authority among the Azad Government, the Council and the Government of Pakistan. The trichotomy of power introduced by the Act reflects that the Government of Pakistan has been entrusted with the performance of certain functions in connection with the affairs of Azad Jammu and Kashmir (inclusive of Northern Areas) and the State, as the case may be. The power of the Court exercisable under the provisions of the Act has not been excluded with respect to the Government of Pakistan or any agency functioning in any part' of the liberated territories, under its command. In absence of an express ouster of jurisdiction, it is permissible to hold that the jurisdiction of this Court to issue writ to the Government of Pakistan, is not excluded. This is more so in respect of enforcement of the fundamental rights as provided under Clause (c) of subsection (2) of section 44 of the Act."
21. The learned counsel for the respondents was given a month's time from the date of hearing of arguments to controvert the record which establishes the petitioners' claim of being State Subjects established by the entries of their residence in Jammu and Kashmir in passport and the same being accepted in Visa issued by the Government of Pakistan besides the recommendations of the AJ&K administrative authorities in their favour and their affidavits etc., but nothing has been placed on record till date. One of the petitioners is also appointed as a teacher by the Government of Azad Jammu and Kashmir.
22. Besides above legal and Constitutional grounds, the petitioners deserve equitable relief in view of the circumstances prevailing in the State. The following paras. Of one of the petitions which can hardly:be repudiated are worth reproducing: :7. That uprising against the aggression of Indian Government and the demand for right of self- determination by Muslims in Occupied Kashmir have turned the Valley into a Hell; The brutalities, inhuman actions, atrocities, mass killing, burning, gang rape, torture, violation of fundamental rights, civil liberties, international law, resolutions of the United Nations by Indian Army have been admitted and condemned at International level. In view of this situation and conditions in Kashmir Valley, the petitioner is unable to return to his native Village of AIRHAMA.
8. That District Kupwarra has been declared disturbed area and under the total control of Indian Army, and as such, the petitioner's return to ZAIR HAMA will amount to disastrous of life. These apprehensions of the petitioner are well founded and as a routine the Indian Army is busy in killing the Muslims over there.
' That after the arrival of petitioner circumstances rapidly changed in Indian occupied part of the State whereby petitioner's brothers and other relatives were arrested by Indian Army. Many of my relatives and villagers were taken to torture cells thereby many families of my neighbouring village have migrated and taken refuge in AJ&K (Hajira). If petitioner is sent back petitioner will lose his life.
' That uprising against the aggression of Indian Government and the demand for right of self- determination by Muslims of Occupied Kashmir whole population especially the residents of border areas like petitioner have become object of brutalities, attrocities, massacre, ganarape torture, burning, violation of human rights, civil liberties, violation of resolution of UN by Indian Army have been admitted and condemned, conditions prevailing in border areas of J&K, petitioner is unable to return to his native village Thalynger Darra Dullian."
23. Who with the open eyes doesn't know what is going on in the occupied part of the State? The continuous stay of the petitioners in AJ&K which is practically a part of Pakistan, leaves no doubt of their association with Pakistan and Azad Jammu and Kashmir. And India's animosity against Pakistan, Pakistanis and their Kashmiri friends, is not hidden. Forcing the petitioners to leave the territory at this stage for occupied part of the State is no less than putting them to beasts. We must mean what we say and have been saying for Kashmir and Kashmiris. It will be sheer ungratefulness, and disservice if the normal technicalities are adapted with respect to abnormal cases and short term and short sighted decisions based on casual administrative expendencies overtake and frustrate the ultimate and long ranging national goals. It would be turning a volte face to the Kashmiris, who are fighting the war of their liberation and unification of the State by liberating the part of the State from the Indian yoke, if their brethren on this side of the State are treated and dealt with as foreigners. Moreover, hundreds of thousands of Kashmiris belonging to Mirpur and other parts of the State are settled in Europe and America with passports of the countries of their domicile. Should they be deprived of the/ status of the State Subject for the whimsical reason of having obtained those passports and. Thus deprive them and the State of a right of vote in plebiscite guaranteed by UN -- the only hope we are being lured in for the last half a century?
24. In view of above-stated reasons, the petitions are accepted and it is ordered that the petitioners shall not be deported. No order as to costs.