ABDUL MAJEED MALLICK, CJ.-The petition raises very crucial proposition in respect of administrative, political and geographic status of the Northern Areas. The settlement of the proposition is desired in the manner as to whether Northern Areas formed part of the State of Jammu and Kashmir, on August 15, 1947, at the time of emergence of Pakistan (independence of the subcontinent) and earlier. In case of positive answer, whether these areas should be annexed to Azad Jammu and Kashmir and be brought under the administrative control of Azad Government of the State of Jammu and Kashmir, is the main relief sought in the petition. Resting the controversy on the aforesaid premises, it is desired that direction may be issued to the Government of Pakistan, through Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad, to explain as to under what authority of law, it administered the said areas; to direct the Azad Government of the State of Jammu and Kashmir to take over administration of the areas and to create administrative and judicial machinery therein by providing due representation to the people of the areas in the Azad Jammu and Kashmir Legislative Assembly and the Council, and restoration of civil liberties and rights admissible to the people of Azad Jammu and Kashmir.
2. Malik Muhammad Miskeen and Haji Amir Jan, residents of Tangir, District Dia Mir (Northern Areas) and Shaikh Abdul Aziz, Advocate, Muzaffarabad, have jointly invoked the writ jurisdiction of this Court, wherein it is claimed that the petitioners are bona fide citizens of the State of Jammu and Kashmir (Slate Subjects). By virtue of their status, it is alleged, the petitioners are eligible to approach this Court for the redress of their grievance.
3. It was explained that the State of Jammu and Kashmir, prior to August 15, 1947, was administratively divided into (i) Jammue Province, (ii) Kashmir, (iii) Ladakh and (iv) Gilgit. Gilgit was leased out by the then erstwhile ruler of the Stale (Maharaja Hari Singh) in favour of British Government of India through a lease-deed executed on March 26,1935. The administration of the areas was controlled by the British Government in terms of. The said lease-deed. On August 1, 1947, these areas were restored to the State Government. Brigadier Ghansara Singh of the State Army was appointed as Administrator. He was overthrown and arrested by the locals of the areas during the war of liberation in 1947.
Alter liberation of these areas by the local people, an agreement was entered into between the Government of Pakistan, Azad Kashmir Government and All Jammu and Kashmir Muslim Conference, on April 28, 1949,. Whereby certain functions were divided and the administrative control of Northern Areas was entrusted to the Government of Pakistan. The said agreement lapsed on enforcement of the Azad Jammu and Kashmir Government Act. 1970. Subsequently substituted by the Azad Jammue and Kashmir Interim Constitution Act 1974.
1. In support of the claim of the petitioners, it was staled that the geographical status of Northern Areas, for being integral part of Jammu and Kashmir State ( as it existed on August 15, 1947 at the time of independence of the sub-continent and emergence of sovereign Stales of Pakistan and India), was acknowledged, among others by the provisions of the Sino-Pakistan Agreement of I963. eference was made to the provisions of the Constitution of Pakistan 1971. To establish that these were not part of Pakistan.
It was further alleged that the Northern Areas formed part of Azad Jammu and Kashmir as defined in the Interim Constitution Act. 1974, as the same were liberated bv the local people from the Dogra army. In that respect, reference was also made to the preamble of the Interim Constitution Act, 1974. It was claimed that the Northern Areas were being administratively controlled by respondent No.1 without any lawful authority and the State Subjects residing in those areas were being dealt within an uncivic manner as no democratic institutions were established there. The Azad Government of the State of Jammu and Kashmir, it was claimed, failed in its duty and constitutional obligations to acquire its administrative control of the areas and to provide civil facilities to its citizens living in the said areas. The petitioners also referred to their efforts in approaching the authorities in Pakistan and Azad Jammu and Kashmir for the redress of their grievance, without success, and claimed that they were constrained to invoke the jurisdiction of this Court under the aforesaid conditions.
5. The Government of Pakistan repudiated the claim of the petitioners and opposed the grant of relief in exercise of writ jurisdiction. It was averred that the jurisdiction of this Court confined to limited area pertaining to the territory of Azad Jammu and Kashmir as defined in Section 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, as such its writ could not run beyond the said territory, it was explained that the Government of Pakistan, to whom the writ was sought to be issued, was not functioning or operating within the territory of Azad Jammu and Kashmir, as such it was not amenable to the jurisdiction of thb Court, It was slated that the proposition raised in the petition is of politic.: nature. This is not likely to be resoled through a writ petition. The objection ol absence of necessary party was also raised. 1h answer to questions raised in the petition, it was alleged that the petitioners No.1 and 2 were not the residents of Jammu and Kashmir. The geographical administrative division of the State in four parts, as alleged in the petition, was denied. The fact that Gilgit area was transferred to the British Indian Government on lease executed on March 2(>, 1955 and its restoration on August 1, 1947 and appointment of Brigadier Ghunsara Singh as Governor of the area was not controverted for its being irrelevant 'to the real question in controversy. Likewise, the execution of agreement between the Government of Pakistan, the Azad Kashmir Government and Ail Jammu and Kashmir Muslim Conference on April 28, 1949, whereby the administrative control of Northern Areas was delivered to the Government of Pakistan was denied. However, the execution of Sino-Pakistan Agreement of 1963 was admitted, It was explained that the provisions of the aforesaid agreement have no bearing on the legal and constitutional aspect of the proposition. In reply to para No.9, it was accepted as true, that the Northern Areas do not form part of the territory of Pakistan as defined in the Constitution of 1973.
However, it was explained that despite that, these areas were nor part of the territory of Azad Jammu and Kashmir. It was further averred that the Government of Pakistan was actively seized with the question of constitutional status of the areas and it was assumed hopefully that the dispute shall be settled in the near future. The Government of Pakistan prayed that the petition may be dismissed for its being legally incompetent and without any merit, Reference was also made to a writ petition-titled "Qurann Ali and others Versus Pakistan and others" pending before the Lahore High Court. Rawalpindi Bench.
(6) The Azad Government of the Stale of Jammu and Kashmir, in its written statement, averred that the petition in the present form was not maintainable, It was explained that some unnecessary parties were impleaded, as such the petition was not maintainable for misjoinder of parties, It was admitted that the Northern Areas were historically part of Jammu and Kashmir State and the administration of these areas was being controlled by the Government of Pakistan in the light of the agreement entered into between the Government of Pakistan and the Azad Government of the State on April 28, 1949. It was further explained that the letters addressed by the President and Prime Minister of Azad Jammu and Kashmir and press statements issued by them, were a clear manifestation of the fact that the President of Azad Jammu and Kashmir was of definite view that the Northern Areas were part of Jammu and Kashmir. The written statement was signed by the Advocate General who was instructed through a letter, NO.MQ/3518-24/91 of November 10, 1991. The letter is reproduced: #tbs OfjU #the Oli~T t* jf XX.
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7. The All Jammu and Kashmir Muslim Conference is also a party to the petition as respondent No.3.
The written statement addressed by the Parly has been signed and verified by Mr. Abdur Rashid Abbasi. In its written statement, the Muslim Conference has opposed the petition for want of jurisdiction to grant the requisite relief, It was further explained that in view of the agreement referred" to above, executed on April 28, 1949 between the two Governments, this Court was not competent to grant the desired relief. On facts, paras 1, 2 and 3 of the petition were admitted as correct. It was elaborated that on 28th of October, 1947, Gilgit area was liberated by the Gilgit Scouts with the assistance of the State Army and the administration of the area was taken over by the State officers. In reply to para 4, it was averred that on enforcement of Azad Jammu and Kashmir Government Act, 1970, followed by the Azad Jammu and Kashmir Interim Constitution Act, 1974, the administrative control over the Northern Areas, in view of the constitutional provisions, vests in the Azad Government of the State of Jammu and Kashmir. In answer to the proposition raised in para 8 of the petition, by accepting the averments made therein as correct, it was explained that even if the preamble or definition of the term "Azad Jammu and Kashmir" does not cover the Northern Areas, these areas are disputed territories aviating the final settlement through a plebiscite in the light of the UNCIP Resolutions. The averments in para 10 were admitted as correct. It was averred that on enforcement of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the administrative control of the Northern Areas should have been restored to the Azad Government by putting an end to the previous agreement of 1949. It was further explained that the Azad Government was unable to take over the administrative control of the areas unilaterally, unless the Government of Pakistan handed over the said control to this Government. The position taken by respondent No.3 was supported by reference to letter No.PS-400/89 of March 17,1989 addressed by President of Azad Jammu and Kashmir to the President of Islamic Republic of Pakistan. The relevant exacts of the letter are; [1]i 1r I * * 11 r t S *} 3 (f) {{Urdu text}} "The two parties have agreed that alter the settlement of the Kashmir dispute between Pakistan and ladin, the sovereign authority concerned will reopen negotiations with Government of the People's Republic of China on the boundary, as described in Article 11 of the present Agreement of Kashmir so as to sign a boundary treaty to replace the present Agreement.
Provided that in the event of that sovereign authority being Pakistan, the provisions of this Agreement and of the aforesaid Protocol shall be maintained in the formal treaty to be signed between Pakistan and the People's Republic of Chine"
Source: (Dawn. Karachi, March 3,1963)." {{Urdu text missed}}
(i) "It is not necessary for me to point out the evident fact that the territory of Jammu and Kashmir is not a part, integral or otherwise, of the territory of the Union. The territory of Jammu and Kashmir belongs to the people of Jammu and Kashmir. It is a territory the future of which must be decided in accordance with the United Nations Commission's resolution of 13 August, 1948, and 5 January, 1949, that is, through an impartial plebiscite under the auspices of the United Nations to determine its accession to India or Pakistan. Inasmuch as both India and Pakistan are bound by these resolutions it is outrageous for one party to assert any claim to sovereignty over Jammu and Kashmir. The claim, which is familiar to the Security Council, bas never been recognised by that principal organ of the United Nations".
(it) "My Government is bound by its duty to declare before the Security Council that, pending determination of the future of Kashmir through the will of the people impartially ascertained, no position taken or adjustments made by either of the parties to the present controversy between ladin and China or any similar controversy in the future shall be valid or affect the status of the territory of Jammu and Kashmir laid down in the resolutions of April 21, 1948, March 30, 1951, January 24, 1957, and in resolutions of the United Nations Commission for ladin and Pakistan, dated August 13, 1948, and January 5. 1949. Which have been jointly accepted by both India and Pakistan and by w which both Governments, according In their repealed declarations, stand engaged".
"The Boundary Agreement (between Pakistan and China) does not ailed the status of the territory of Jammu and Kashmir, It docs not affect the imperatives of demilitarization of the State. It does not derogate one jot or title from the right of self-determination of the people".
J* Oljj> c.*U. l*^*^t* jl* jjt '*** (tr) *S" l^J" ^ If ^ffl S' jy-iT j 'i-bj - efr (jWI frlL. JT {{Urdu text}} It was concluded that respondent No.3 has no objection if the relief prayed for is granted to the petitioners by issuing an appropriate writ. ,8, Mr. Abdur Rashid Trabi, Amir Jamaat-e-lslami, Azad Jammu and Kashmir. Respondent No.8, in his written statement, admitted all the asermenls made in the petition. His answers to paras 4, 8 and 12, being important to the proposition under consideration, are hereby reproduced: (URDU) {{Urdu text missed}}
9. Mr. Muhammad Abdul Khaliq Ansari, President Jammu and kashmir Plebiscite Front, respondent No. 10, has categorically admitted the claim of the petitoners and prayed that the petition may be granted by issuing an appropriate writ. The written statement iss accompained by an elaborate statement relating to history f the Northern Areas, along with references to various authorities (books). It spreads over 79 page. A supplementary statement, spreading over 35 pages, was also submitted by the respondent, along with photostats of references, in support of facts listed therein.
The references are described as: {{Urdu text missed}}
10. Mr. G.M. Mir, President National Liberation Front, in his written statement, also supported the petition and submitted that the desired relief may be granted by issuing an appropriate writ. The written statement, spreading over 41 pages, consists of various references, as under: GEOGRAPHY
1. Rand McNalley Historical Atlas of the world; Map of Asia, 1900 and 1950. G-1/A.G-1/B.
2. Map Inside title of History / of Struggle in Kashmir, by Prem Nath Bazaz, G-2
3. Basic Information in Maps, Ministry of Kashmir Affairs, Government of Pakistan. G-3 J*/ Ujf jjl - fw-* i* M *US CM {{Urdu text}}
5. India's Frontiers with China, from the book 'Tibet Disappears', by Chankya Scn. G-5
6. Map attached with 'Pak-China Boundary Agreement', (Keesing's contemporary Archives), P. 19429 G-6
7. Oxford School Atlas (Exford University Press). G-7/A,B,C,D.
8. Descriptive Map of UN. G-8
9. World Allas Bartholomew, page 60, Punjab, and Kashmir. G-9
10. Collins Allas of World History, 1947-87. G-10
11. Phillips Modern School Atlas 1941 India, Burma and Ceylon. G- 11
12. The New Oxford Atlas, South Asia. G-12
13. The New Oxford Atlas, South Asia. G-13
14. Encyclopaedia Brittanica (Gilgit). 0-14. #tbs G-li #the I JT yli {{Urdu text}}
11. Azad Jammu and Kashmir Peoples' Party, Jammu and Kashmir Liberation League, Azad Jammu and Kashmir Muslim Conference, Azad Jammu and Kashmir Tehrik-e-Amal Party and Jammu and Kashmir Liberation Front, respondents No.4,5,6,7, and 9 respectively, failed-to turn up. They were proceeded exparte. Mr. Amanullah Khan appeared during the arguments but written statement was not furnished.
12. Azad Jammu and Kashmir Muslim Conference and Azad Jammu and Kashmir Tehrik-e-Amal Party were dissolved during the pendency of the petition, as such their names are struck off from the list of the respondents.
13. In view of the spirit of controversy raised in the petition, it is deemed expedient to have an appraisal of historical back-ground of emergence of the State of Jammu and Kashmir, as it existed at the time of independence of the subcontinent. Fortunately, the history of Kashmir State, spreading over last five thousand years, has bees well preserved. Numerous books have been written by celebrated writers of the State, Indo-Pakistan, Europe and America. Foreign historians, scholars, saints, jurists and travellers were invariably attracted by the scenic beauty of the State.
Many of them accompanied invaders. They could not resist the expression of their sentiments and praise of natural beauty of Kashmir. They listed their experiences and impressions in their treatises.
This is just to suggest that ample literature, relating to past history of the State, is readily available.
It is least necessary to go into lengthy thesis and reports, as suffice it to recapitulate the relevant events resulting in the constitution of the modern State of Jammu and Kashmir. There is agreement that the territorial limits of the State, at times, stretched to the heart of India, inclusive of Punjab and Frontier Provinces, upto Afghanistan. Invariably, these limits squeezed under different pressures of invasions, leading to re demarcation of boundaries of the adjoining States. Under Muslim rule, the State attained its glory and lustre during the regime of Sultan Shahab-Ud-Din and Zain-il-Abedin alias Badh Shah. Sultan Yusuf Shah Chak was the last ruler of the State. He was dethroned and imprisoned by the forces of the Mughal Emperor, Akbar, and the State was annexed to Mughal empire in the sub-continent. In 1752, on decline of Mughal empire, Ahmad Shah Abdali of Afghanistan conquered the State. In 1819, it was annexed to the Sikh State with its capital at Lahore.
14. Maharaja Gulab Singh, the founder of Dogra dynasty, was a local feudalist of Jammu. He was rewarded by Lahore Darbar, under Sikh rule, for helping them in the expedition of Kashmir. On acquisition of a Jagir in Jammu, he manoeuvred to extend his influence in Ladakh, Baltistan and adjoining areas, in between 1837 and 1839. This was the time when the East India Company was also engaged in extending its dominion in northern parts of India to accomplish its ambition to rule over the sub-continent. As a result of combatment between the East India Company and Sikh forces, the Sikh Army was defeated and the British forces occupied Lahore. On truce, a treaty was signed between the British Government and the State of Lahore, on March 9, 1846. By virtue of the terms and conditions of the treaty, as envisaged in Article 4, the British Government demanded from Lahore Darbar an indemnification for the expenses of war, in addition to cession of the territory described in Article 3, and payment of one and half crore' rupees. The Lahore Government being unable to pay whole of the amount or to give satisfactory security, ceded to the East India Company, in perpetual sovereignty, as equivalent of one crore of rupees, all its forts, territories, rights and interests in the hill countries which were situate between the rivers Bcas and Indus, including of Kashmir and Hazara. Gulab Singh, a crafty politician and soldier, had already gained confidence of the British authorities by collaborating with them during the war against Sikh army.
Apparently, he demonstrated his neutral role and on defeat of the Sikh Army, assumed the role of a mediator. Thus, he exploited the situation by offering to pay the amount of indemnity in the sum of rupees seventy-five lacs (Nanak Shahi) for the transfer of Kashmir State. In view of the aforesaid conspiracy, the British authorities introduced one of the conditions in the treaty whereby Maharaja Dalip Singh of Lahore State was made to agree to recognise independent sovereignty of Raja Gulab Singh in such territories and districts in the hills as may be made over to him by a separate agreement between himself and the British Government, including dependencies which were in possession of Gulab Singh since the time of late Maharaja Kharak Singh. The British Government also agreed to recognise his independence in such territories, in consideration of his good conduct.
He was to be admitted to the privileges endorsed in the treaty by a separate treaty with the British Government.
I5. On March I6, 1846, another treaty was signed between the British Government and Maharaja Gulab Singh of Jammu, at Amritsar. The British Government, by virtue of treaty of Amritsar, transferred and made over for ever, in independent possession of Maharaja Gulab Singh and heirs male of his body, all the hilly or mountainous country with its dependencies situate to the east- ward of river Indus and west-ward of river Ravi, including Chamba and excluding Lahul, which were ceded to the British Government by the Lahore State under the provisions of Article 4 of the treaty of Lahore. In the light of terms of the treaty, Maharaja Gulab Singh agreed to pay to the British Government sum of seventy-five lacs of rupees (Nanak Shahi) on or before lst of October, 1846.
Maharaja Gulab Singh, by virtue of Article 10 of the treaty of Amritsar, acknowledged the supremacy of the British Government and in token of such supremacy, agreed to present annually to the British Government one horse, 12 perfect shawl goats of approved breed (6 male and 6 female) and three pairs of Kashmir shawls. Thus, the State of Jammu and Kashmir emerged as such by virtue of treaty of Amritsar. Areas lying on the right bank of river Indus were annexed during the rule of Ranbir Singh, son of Gulab Singh. The annexation of these areas was approved by the British Government of India. The final shape of Jammu and Kashmir State, therefore, was articulated during the regime of Ranbir Singh. It was administratively divided into provinces of:
(i) Jammu;
(ii) Kashmir;
(iii) Ladakh; and
(iv) Gilgit and Frontier Illaqas.
(Frontier Illaqas comprised of:
(i) Hurtza;
(ii) Nagar;
(iii) Punial;
(iv) Yasin;
(v) Kuh;
(vi) Ghizar;
(vii) Ishkoman; and
(viii) Chilas, with an area of 14,680 sq. Miles).
At present, Gilgit, Baltistan and former Frontier lllaqas are designated as 'Northern Areas'
16. The Kashmir State :oreads over 84,471 sq. Miles. The area of Jammu province was 12,378 sq.
Miles; Kashmir province 8,539 sq. Miles and Ladakh, Gilgit and Northern Areas 63,554 sq. Miles.
According to the census of 1941, the total population of the State was 4,021,616. Muslims were 78.11%.
The province- wise population was:
(i) In Jammu province, total population was 1,981,433; Muslims were 61% and Hindus 39%;
(ii) In Kashmir province, Muslims were 93.7% in a total population of 1,728,705.
The aforesaid facts and figures find support from the book "Danger in Kashmir" by Josef Korbel. (Dr. Josef Korbel was member of the United Nations Commission for India and Pakistan, first time constituted by the Security Council. He was nominee of India. His book "Danger in Kashmir" highlights geo-political and strategical position of Jammu and Kashmir State, resulting in conflict between India and Pakistan, as acknowledged at the forum of the United Nations). Other well- known references are The Kashmir Saga" written by Sardar Muhammad Ibrahim Khan, founder President, Axad Government of Jammu and Kashmir State, "Crisis in Kashmir" by Professor Alastair Lamb, "Kashmir's Fight for Freedom" by Muhammad Yusuf Sarraf, former Chief Justice, A.K. High Court, "Inside Kashmir" by Prem Nath Bazaz and Census Report of 1941.
16. Under the later Muslim rule, Kashmir State received great impetus in industries, trade, horticulture and architecture. Srinagar became a great centre of trade where people from Tashkent and India flocked in large numbers. It was during the period of its national independence that Kashmir had a standing army of its own. Thus, in the course of time, Kashmir developed military traditions and won laurels in many a battle-field. They over-ran the Sind valley and crossed Hindukush. Punjab, Western Tibet and Kulu valley formed part of Kashmir dominion.
Embassies represented the Kashmir State in Turkey, Azar Baijan, Egypt, Delhi and Gujrat.
17. As a result of foreign, subjugation, Kashmir lost all its lustre and glory. In the beginning of 18th century, Kashmir suffered a lot by oppression of conquerors and warriors. Thus., Kashmiris were reduced to a very low status. Sikh rulers treated them little better than cattle. William Moorcraft described the position as: " I have been in many lands, but nowhere did the condition of human beings present a more saddening spectacle than in Kashmir".
In "Narrative of a Mission to Bukhara", the author described the condition of Kashmiri people, under Sikh regime, as: "I left Kashmir on October 21, 1832. On our road, we were accompanied by fugitives flying from the oppression of Ranjit Singh. Women walking, destitute of every thing, carrying their children on their backs. They told me in their powerful language that they inherited the beauty of angles but all their beauty had withered in the dominion of Sikhs".
18. The Dogras ruled the people of the State with iron hands. They excluded Muslims from all services. The Hindus had the monopoly of trade. The land produce was subjected to heavy taxation like trade and other professions. The wealth of forests and mines was the exclusive preserve of the Government. Land revenue was three times higher than in force in the neighbouring Punjab. The sale of Silk, paper, tobacco, salt, saffron and grains was monopolised by the State. The law discriminated against the Muslims as they could not carry fire-arms without licence. Cow- slaughter was a penal offence. Of the 28 Prime Ministers, not a single was Muslim. Out of 13 battalions of the State army, not one was Muslim. This account finds ample support from "Inside Kashmir" by Prem Nath Bazaz.
19. The aforesaid account reflects the administrative, political and economic conditions of the State and its people, under the Dogra dynasty. But despite accute repressive conditions, the Muslims of the State resisted their servitude and subjugation. Their resistance was invariably ignored by the brute forces of autocrat ruler. Despite that, the voice of agony of Kashmiris travelled to neighbouring Punjab and Central India. The misery of Kashmiris also received attention of the travellers, tourists and journalists.
20. Muslim masses got awareness and awakening particularly in early twenties and thirties of twentieth century. They voiced their grievances through memorandums addressed to the Viceroy of India. They were supported in their voice by the Muslims of neighbouring Punjab. Muslim Conference and Kashmir Committee, organised in Lahore, rendered great services to the cause of the oppressed Kashmiris. The wave of actual awareness came when educated Muslims of Srinagar and Jammu city organised themselves in the style of "Reading Room Party" and "Young Men's Muslim Association". They demanded their share in the State services. Speeches were made in Jumma prayers and other public meetings. The political awakening assumed a concrete shape in 1931. One Abdul Qadeer, a non-State Muslim, was detained on the charge of sedition. He voiced the grievances of Kashmiri Muslims in a public speech. He was arrested and his trial as being held inside Srinagar jail. The Kashmiri Muslims demanded an open trial of Abdul Qadeer. In order to enter the jail to witness the trial, they surrounded the Central jail. The police opened fire, by killing 21 persons and wounding many others. This occurred 6a July 13. Thus, the day of July 13 assumed an historical day as "Martyrs Day" in the History of Kashmir.
21. Kashmiris organised themselves in the name and style of All Jammu and Kashmir Muslim Conference in 1932. Muslim Conference advocated the cause of the Muslims of the State until it was converted into National Conference in 1939. It was revived in 1941 after the passing of the Lahore Resolution (Pakistan Resolution) on March 23, 1940. Since then both the political parties worked for the liberation of Kashmir, restoration of basic rights and civil liberties of the people of the State, from the rival platforms. The National Conference allied itself with the objectives of the All India Congress whereas the Muslim Conference became an ally of the All India Muslim League and pursued its objectives.
22. On announcement of independence of the sub-continent (Hi June.3, 1947, the Muslims of the State demonstrated their voice in favour of accession of the State to Pakistan. On July 19, 1947, the Muslim Conference, in its meeting held in Srinagar, declared its desire to accede to Pakistan. The decision of the Muslim Conference, in the shape of its resolution, is reproduced:- "(1) This meeting of All Jammu and Kashmir Muslim Conference Convention expresses its satisfaction and congratulates the Quaid-e- Azam for his achievement.
(2) The People of the Indian States expected that they would walk shoulder to shoulder with the people of British India in the attainment of freedom. On the partition of India the people of British India have obtained independence but the announcement of June 3, 1947, has strengthened the hands of the Indian Princes and unless the Princes respond to the call of the times, the future of the people of the Indian States is very dark. There are only three ways open to people of Jammu and Kashmir State:-
1. To accede to India, or
2. To accede to Pakistan, or
3. To remain independent.
The Convention of the Muslim Conference has arrived at the conclusion that keeping in view the geographical conditions, 80 percent Muslim majority out of total population, the passage of important rivers of the Punjab through the State, the language, cultural and racial, economic connection of the people and proximity of the borders of the State with Pakistan, are all facts which make it necessary that the Jammu and Kashmir State should accede to Pakistan."
23. It is relevant to recapitulate the scheme of independence of the subcontinent, to enable to appreciate the conflict of Kashmir, relevant to the proposition under consideration. The political forces in the sub-continent were divided into All India Congress (hereinafter referred to as Congress) and All India Muslim League (hereinafter referred to as the League). The leadership of Congress pursued independence of the sub-continent as one unit. Conversely, the League demanded creation of Pakistan by partition of India. Efforts were made at diplomatic and political levels to attain conciliation between the rival leadership of the sub-continent, but without success.
Thus, in the light of demand of the rival parties, the schmes of independence of the sub-continent was pronounced by the British Government, through the Viceroy of India, on June 3, 1947. The scheme was given a statutory form in the name of the Independence Act, 1947. The Act was promulgated by the British Parliament for setting up two independent dominions, viz., (1) Indian Union and (2) Pakistan. Thus, both the dominions were to emerge on August 15, 1947 as successor to the Government of British India. The partition of the sub-continent was to take place on the basis of two- Nation theory, meaning thereby that the Muslim majority areas were to form part of Pakistan and the rest that of Indian Union.
24. Prior to the Independence Act, the Government of India Act, 1935 envisaged a scheme of accession of Princely States to the British India. On the same pattern and style, advice was tendered by the Viceroy of India to the Princes. He addressed the Chamber of Princes in Delhi on July 25, 1947. The Princes were advised to accede to either of the dominions of their choice.
Nevertheless, it was advised that while deciding the question of accession, the rulers should keep in view:
(i) the geographical proximity;
(ii) the welfare of the State; and
(iii) the views of majority of the people of the State.
25. The rulers of the States of the sub-continent somehow decided the accession of their States to either of the dominions, except the Nizam of Hyderabad and the Maharaja of Kashmir State.
26. The proposition under consideration is an off-shoot of the Kashmir dispute, as the ruler of the State failed to take timely decision by acceding to either of the dominions before August 15, 1947.
The decision was delayed deliberately to reduce the majority of the Muslim population by resort to large scale genocide on the pattern of States of Kapurthalla, Faridkote, Patiala, Bharat Kapur, Alwar and Gwalior. In all these States, a preplanned extensive campaign of genocide was directed against the Muslim population. An identical drama was to be staged in the State and, in fact, in south-eastern part of Jammu, Kathua and Akhnoor, action of genocide was initiated by the State forces, assisted by bands of Sikhs and Hindus. A wave of terror thus ran throughout the State. In such a situation, the Muslims of the State, particularly the ex-soldiers who had served in the second world war, organised themselves into small units and decided to make a final bid for liberty. Thus, several thousands of Muslims of the State, particularly in the areas of Poonch and Mirpur, decided to struggle against the brute forces of the State. In lieu of their sacrifices, areas of district Mirpur, Kotli, Rawalakot, Bagh, Poonch, Gilgit, Baltistan and Frontier areas were liberated. The Muslim forces set up an Azad Government on October 24, 1947, which took over the administrative control of these areas, in addition to freedom movement. The administrative control of Gilgit, Baltistan and Frontier areas was taken over by the Pakistan Government. This action was subsequently ratified by an agreement executed between the Government of Pakistan and and Azad Government of the State of Jammu and Kashmir, endorsed by the President of All Jammu and Kashmir Muslim Conference, in April, 1949. Since then, the administrative control of the areas has been continuously with the Government of Pakistan. As the people of these areas were not associated with the administration nor they were given due representation in the Assemblies, it was realised, with the passage of time, that these people were deprived of their basic human rights, including the right of representation and administration. Thus, an effort was made to seek redress of their grievances at various Government and political levels. On failing to attain the desired results, the controversy was raised before this Court in the shape of the present petition.
27. It is well known that civil liberties remained suspended in all parts of the liberated territories of the State for a considerable time when, for the* first time, in 1960, limited franchise was introduced in Azad Jammu and Kashmir. It was subsequently suspended for some time. In 1970, however, for the first time, a Constitutional Act in its proper form was enforced. The writ, jurisdiction was conferred on this Court in 1972. In 1974, the Act of 1970 was modified and the Azad Jammu and Kashmir Interim Constitution Act, 1974 was enforced.
28. In Northern Areas, however, on account, of separate administrative set up, the provisions of the Interim Constitution Act were not extended. The political leaders, parties, the President, Prime Minister and members of the Assembly of Azad Jammu and Kashmir invariably demanded integration of the Northern Areas with Azad Jammu and Kashmir and extension of the Interim Constitution Act to that end. The people of the Northern Areas were deprived of the civil liberties and basic rights, on account of delay in settlement of the Kashmir problem. The settlement could not be reached on account of obduracy erf India. Here it may not be out of context to recapitulate the political developments in the sub-continent relating to accession of disputed States, namely, Junagrah, Hyderabad and Kashmir.
29. The ruler of Junagarh was Muslim. The predominant population of the State was non-Muslim and geographically it was contiguous to Indian Union. The ruler announced the accession of the State to Pakistan. The Pakistan Government accepted the accession. The Indian rulers occupied the State forcibly and thereafter reference was made to the State Subjects in the shape of plebiscite. In February, 1948, the Hindu majority population of the State voted in favour of India and against Pakistan, thus, the forcible annexation of Junagarh was (Sic)
30. The Nizam of Hyderabad decided to remain independent. This was disliked by the Indian rulers and the leadership of Congress. The economic blockade made by India was followed by military occupation of Hyderabad in September 1948. The military occupation of Hyderabad was not sought to be ratified by a plebiscite through a reference to the people of the State.
31. In case of Kashmir, the position was quite converse to that of Junagarh, as here the ruler was a Hindu Mharaja, the population was predominantly Muslim and geographically the State was contiguous to Pakistan. The Maharaja hesitated the decision of accession of the State. He hatched a conspiracy with the Congress leadership as he was in direct contact with Mr. Patel, the then Deputy Prime Minister of the Indian Union. Secret and discreet steps were undertaken to manoeuvre territorial links of the State with India. Senior leaders of Congress, including Mahatma Gandhi, paid visits to the State as State guests. Lord Mountbatten also visited the State to influence the Maharaja to secure accession of the State to India.
32. In addition to political manoeuvring, State forces in Patiala were also despatched to Kashmir to help the State forces to maintain law and order. On the other hand, as a deception, on August 12, a Stand still Agreement was proposed both to ladin and Pakistan. Pakistan accepted the proposal whereas India avoided it, on the pretext of direct negotiations at the ministerial level.
33. As the Pakistan Government and leadership was deeply occupied in the establishment of administration of the new dominion, settlement of refugees and other national issues, an organised genocide of the Muslims of the State was planned by fanatic Hindu and Sikh forces.
Trained Hindu and Sikh gangsters were brought in the State. They were distributed arms. Muslims were dis-armed. Additional military cantonments and posts were established in Jammu, Kathua, Samba, Mirpur and Poonch, and entire frontier common with Pakistan territory was sealed, In the first week of September, large scale genocide operations were started. The Muslims in Samba, Kathua, Udhampur and Jammu were subjected to sudden attacks. Over quarter of a million were killed and more than a quarter million were forced to migrate to Pakistan. Times of London, in its publication of October 10,1948, reported: "Over a quarter million Muslims were massacred in Jammu Province alone. The orgies of bloodshed were initiated by the hired gangsters imported by the State administration, with State troops looking on as unconcerned spectators,' at times and on occasions by the troops themselves with the Maharaja heading them at quite a few places".
34. On apprehending the nefarious designs of the Maharaja and State authorities, the Muslims of the State were alarmed. In a state of terror, they organised themselves. The lot who had served in the second world war, raised regiments and undertook an armed struggle against the forces of Maharaja. They were reinforced bv the neighbouring Muslims from Punjab, North-West Frontier Province and tribesmen. Mirpur, Bhimber, Kolli, Bagh, Rawalakot, Pallandari and Muzaffarabad were liberated. Rajouri and Mehndar, except Poonch city and areas surrounding Naushchra, were also occupied by the freedom-fighters. Gilgit, Baltistan and Ladakh were also eventually liberated by the local people of the areas, assisted by Gilgit Scouts and the Muslim soldiers of the State army.
On October 24, 1947, a revolutionary Government was formed. The revolutionary Government assumed the charge of armed struggle and also undertook the establishment of administration to restore law and order in the liberated territory.
35. Maharaja Hari Singh, who deserted Srinagar, took refuge in Jammu. On giving a final touch to the conspiracy already undertaken, the accession of the State was announced with ladin. The Governor-General of India acknowledged the accession provisionally, with the condition that on restoration of law and order, the question of future of Jammu and Kashmir shall be determined by its people in exercise of their free will through a plebiscite under the auspices of the United Nations.
The Government of Pakistan lodged a strong protest against the fraudulent accession of the State with India. The Indian Prime Minister, through telegraphic messages adressed to the Prime Minister of Pakistan, assured the settlement of future of the State by a reference to its people. The telegraphic messages addressed by the Prime Minister of India to the Prime Minister of Pakistan, during October and November, 1947, are reproduced: In telegram of October 26, 1947, from Jawahar Lai Nehru to the British Prime Minister, Clement Attlee, in para 3, it was assured: "I would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of people and we adhere to this view."
The Prime Minister of Britain, in his message to the Prime Minister of Pakistan on October 27, 1947, repeated the words of the Prime Minister of India, as: "He adds that he would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India".
In telegram of October 28, 1947 to Mr. Liaquat Ali Khan, Mr. Nehru reiterated: "In regard to accession also it has been made clear that this is subject to reference to people of State and their decision. The Government of India have no desire to impose any decision and will abide by people's wishes".
In telegram of October 31,1947 to the Prime Minister of Pakistan, the Prime Minister of India reasserted, in para 7, as: "Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of this State to people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world.
In his telegram of November 4, 1947 to the Prime Minister of Pakistan, Mr. Nehru said: "I wish to draw your attention to broadcast on Kashmir which I made last evening. I have stated our Government's policy and made it clear that we have no desire to impose our will on Kashmir but to leave final decision to people of Kashmir. I further stated that we have agreed on impartial international agency like United Nations supervising any referendum.
This principle we are prepared to apply to any State where there is a dispute about accession".
36. In his telegram of November 8, 1947 to the Prime Minister of Pakistan, Mr. Nehru, Prime Minister of India, in para 10, said: "It will thus be seen that our proposals which are repeatedly stated are: (1) that Government of Pakistan should publicly undertake to do their utmost to compel the raiders to withdraw from Kashmir; (2) that Government of India should repeat their declaration that they will withdraw their troops from Kashmir soil as soon as raiders have withdrawn and law and order are restored; (3) that Governments of India and Pakistan should make a joint request to U.N.O, to undertake a plebiscite in Kashmir at the earliest possible date.
The above conclusions relate only to Kashmir, but it is essential, in order to restore good relations between the two Dominions, that there should be acceptance of principle that, where Ruler of a State does not belong to community to which the majority of his subjects belong, and where the State has not acceded to that Dominion whose majority community is same as State's, the question whether State has finally acceded to one or other Dominion should be ascertained by reference to the will of people".
37. On failing to settle the dispute bilaterally, India took the matter to the United Nations. Both India and Pakistan made allegations and counter-allegations in the Security Council. Pakistan's reply to the Indian allegations and its counterallegations against India was sent through a letter to the Security Council on January 15, 1948. On that day, Mr. Gopalaswami Ayyangar, the Indian representative, made his policy statement in the Security Council and emphasised: "We desire only to see peaice restored in Kashmir and to ensure that the people of Kashmir are left free to decide in an orderly and peaceful manner the future of their State. We have no further interest, and we have agreed that a plebiscite in Kashmir might take place under international auspices after peace and order have been established.
The question of the future status of Kashmir vis-a-vis her neighbours and the world "at large, and a further question, namely, whether she should withdraw from her accession to India, and either accede to Pakistan or remain independent, with a right to claim admission as a Member of the United Nations- all this we have recognized to be a matter for unfettered decision by the people of Kashmir, after normal life is restored to them".
38. The Security Council, on hearing both sides and appreciating the scenario in Kashmir, passed its resolution on January 17, 1948. It was supplemented by a detailed resolution on January 20, 1948, whereby a Commission of the U.N. Was established. It was known as the United Nations Commission for India and Pakistan. It comprised three members, one each to be nominated by ladin and Pakistan and the third to be nominated by the nominees of these countries. The Commission was directed to proceed to the spot quickly and to investigate the facts and to report its advice. The scoppe of authority of the Commission spread over the complaint of India and the counter-complaint made by Pakistan in its letter of January 15, 1948. On February 6, 1948, the Security Council made an appeal to both parties to agree with a just settlement of Kashmir problem, to put an end to violence and hostilities and to withdraw all regular and irregular forces who entered the State from outside. These resolutions were supplemented by a comprehensive resolution passed on April 21, 1948 and the United Nations Commission for India and Pakistan's resolutions of August 13, 1948. And January 5, 1949. Truce was made on January 1, 1949. Thereafter, the process of demilitarization, as envisaged in the aforesaid resolutions, was obstructed by ladin on one pretext or the other.
39. The Security Council, members of the United Nations' Commission for India and Pakistan and representatives of the Security Council appointed from time to time, endeavoured their best to persuade the Government of India and its leaders to implement the resolutions by withdrawing her armed forces from the State and holding plebiscite. Pakistan Government agreed to all suggestions and cooperated to hold plebiscite in the State. Indian Government, on the other hand, used dilatory tactics by seeking unnecessary explanations from the members of the Commission, in order to gain time, with the intention to frustrate the United Nations Resolutions. Long discussions were held at Delhi, but without success. Ultimately, ladin declined to cooperate to hold plebiscite as, in its view, the balance of power in the sub-continent was disturbed. It also used the elections to the Assembly of Occupied Kashmir as one of the methods, to defeat the efforts of the Security Council, in its utter disillusion by the attitude of the Indian authorities, postponed its proceedings sine die.
40. Hostilities between the liberation forces and the Indian forces once again resumed in August- September, 1965. In derogation to all international ethics. India attacked Pakistan. The conflict between the two forces culminated in cease-fire and ultimately in the shape of Tashknt Declaration made on January 5, 1966.
41. In consequence of movement of cessation of East Pakistan and military hostilities initialed by India, once again a truce was affected between India and Pakistan at .Simla on July 20, 1972. After the Simla Agreement, Kashmir question was buried in deep cold storage of archives of the Security Council till 19S9 when the liberation movement was revived by the youth of Indian-occupied Kashmir. The upsurge was the result of oppression of Indian administration in occupied Kashmir, deprivation of basic rights, rigging of general elections, economic recession, rise in unemployment, and usurpation of control of local bodies in the Stale. The movement was totally indigenous. Large scale genocide, loot and arson, oppression of unarmed Kashmiris at the hand of security forces of ladin - half million in size, have given a new dimension to the liberation movement. Thus. Kashmir has come once again in international focus.
42. The proposition, as noticed earlier, confines to geographic, administrative and political status of the Northern Areas. It was alleged that Northern Areas were part of Jammu and Kashmir State.
They were liberated by the local people like other areas of the State,-popularly known as Azad Jammu and Kashmir, as such Northern areas may be construed on identical pattern as Azad Jammu and Kashmir. The suggestion was advanced to seek extension of the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and administrative control of the Azad Government. We have already examined the emergence of the present State of Jammu and Kashmir, as it existed on August 15, 1947; the development in the liberation movement and liberation movement of the sub-continent, resulting in emergence of independent States of Pakistan and India; the genesis of the Kashmir dispute, bilateral approach for its settlement and its position in the Security Council, obduracy of India to agree to a settlement of the dispute by implementation of the United Nations's resolutions, the conflict of 1965, culminating in Tashkent Agreement, the cessation of East Pakistan, resulting in Simla Agreement, and the causes of the current upsurge in Kashmir. We have also listed various factors which persuaded the petitioners to invoke the writ jurisdiction of this Court. The main contestant in the petition is the Government of Pakistan, respondent No.1. We propose to deal with the objections raised on behalf of respondent No.1 at later stage and proceed to settle the objections raised by the Azad Government of the State of Jammu and Kashmir, respondent No.2, and All Jammu and Kashmir Muslim Conference, respondent No.3, at the stage.
43. The term "Northern Areas", as we have examined earlier, applies and includes Gilgit, Baltistan and Frontier illaqas. Frontier illaqas comprise of:
(i) Hunza;
(ii) Nagar;
(iii) Punial;
(iv) Yasin;
(v) Kuh;
(vi) Ghizar;
(vii) Ishkoman; and
(viii) Chilas.
The Azad Government, in its written statement, admitted that the Northern Areas were part of Jammu and Kashmir State and are presently being administered by the Government of Pakistan by virtue of the agreement of April 28r 1949. However, it opposed the petition:
(i) for its non-maintainability in the present form; and .
(ii) for impleading some unnecessary parties (mis-joinder of parties).
It was not elaborated as to how the petition was not maintainable in its present form. The objection relating to mis-joinder of parties was also not raised at the time of arguments. As a matter of fact, the learned Counsel for the Government supported the claim of the petitioners.
44. The point of mis-joinder of parties refers to respondents No.3 to 11,which are the political parties of Azad Jammu and Kashmir. It is true that political parties of Azad Jammu and Kashmir are not necessary parties, as no relief is sought in their favour or against them, but the, fact remains that all these parties invariably supported the cause of the petitioners at their political platforms and by making representations to the Government of Pakistan. Respondents No.3, 4,5, 6 and T enjoyed the mandate of the electorate in the Assembly, where they unanimously moved a resolution, as the resolution of the Assembly of Azad Jammu and Kashmir, in support of .The claim of the petitioners.
That leads to the conclusion that the respondents No.3 to 11 were obviously interested in the result of the petition. Their presence before the Court was of importance as they were in a position to render valuable assistance in the effectual and conclusive settlement of the controversy. Their presence Was equally necessary to avoid multiplicity of identical controversies. Thus the respondents were proper party in the case. The objection stands repelled.
45. All Jammu and Kashmir Muslim Conference, respondent No.3, admitted that the Northern areas were part of the Jammu and Kashmir State. These areas were liberated by. The Gilgit Scuts, with the assistance, of the State army. It was also agreed that on enforcement of-Azad Jammu and Kashmir Government Act, .1970, followed by Interim Constitution Act, 1974, the administrative control over Northern areas vested. In the Azad Government. It was accepted that the Northern areas were disputed territories, awaiting final settlement through a . Plebiscite in the light of the UNCIP resolutions. The agreement of April 28, 1949 was also endorsed. However, the petition was opposed for want of jurisdiction. We propose to. Decide the question of jurisdiction later on when we take up the objections raised by respondent No.1 in that perspective. Next we proceed to the points raised by the petitioners and opposed by respondent No.1.
46. The basic point in dispute pertains to geographical position of the Northern areas. It was alleged by the .Petitioners that the Northern areas were part of Jammu and Kashmir State, as such these are part of the disputed territories. Their future is yet to be- settled along with other parts of- the State in the light of the UNCIP resolutions. This part of the proposition was answered by respondent No.1 evasively, as it Was not controverted specifically and expressly. The point at issue is purely a question of fact and it is to be resolved in the light of the material placed before us. The material sought to be relied upon, comprises of reference books, inclusive of;
(i) .Census of India, 1911, 1921, 1931 and 1941 pertaining to the State of Jammu and Kashmir; -
(ii) Maps of the 'State, published by Public Relations Directorate, Ministry of Foreign Affairs, Government of Pakistan, in November, 1951;
(iii) Various statutes in force in the State prior to August 15,1947;
(iv) "Danger in Kashmir" by Josef Korbel;.
(v) "Crisis in Kashmir" by Alastair Lamb;
(vi) "Kashmiris Fight for Freedom" by Sarafan;
(vii) "Kashmir Saga" by Sardar Muhammad Ibrahim khan, founder President of Azad Jammu and Kashmir;
(viii) "History of Struggle for Freedom in Kashmir" by Prem Nath Bazaz;
(ix) Maps published by Rand McNalley;
(x) Historical Atlas of World, 1965, U.S.A.;
(xi) India's Frontiers with China, from the book "Tibet. Disappears", by Chankya Sen.
(xii) Oxford School Atlas;
(xin) Descriptive map of U. Bl.; (xiyj World Atlas Bartholomew, 1985;
(xv) Collins Atlas of World. History, 1947-87:
(xvi) The New Oxford Atlas 1941 India, Burma and Ceylon;
(xvii) The New Oxford Atlas, South-Asia; (xviii) The New Encyclopaedia Britannica;
(xix) The Emergence of Pakistan" by Chaudhry Muhammad Ali;
(Xx) TAAREEKH-E-JAMMU by Alhaj Maulvi Hashamtullah Khan Lakhnavi;
(xxi) TAAREEKH-E-DOGRA DES by Diwan Narsing Das Nargis;
(xxii) TEHREF.K-E-AAZAD1 by Col. Mirza Hassan Khan; (xxiii) . "The Legacy of Kashmir" by Major Arthur Neve;
(xxiv) Sino-Pakistan Treaty executed on March 2,1963,
(xxv) Gilgit Before 1947".By Brig. Ghansara Singh Jamwal; (xxvi)"Kashmir .Question"- Speeches of Sir Zafarullah Khan , Foreign Minister of Pakistan, in the Security Council on February 7, S and 9, -1950; ' v'', (xxvii) "Kashmiris Bid For Freedom" by Nafisur Rehman A.G. So. Ofi; (xxviii) AALMI SAAMRAJ AUR KASHMIR by Abbas Ahmad Azad;
(xxix) "Friends Not Masters" by Field Marshal Muhammad Ayub Khan, President of Pakistan; .
(xxx) GILGIT AND SHINA ZABAAN by Dr, Namoos; published in 1961;
(xxxi) "- , " by. Muhammad Abdul Khaliq Ansari; '
(xxxii) A letter, addressed to President Ziaul Haq on behalf of AII Jammu and Kashmir Muslim Conference, Azad Kashmir People's Party, Azad Jammu and Kashmir Muslim Conference and Plebiscite Front; (xxxiii) An interview of President Ziaul Haq, published in Sunday Weekly, Calcutta; (xxxiv) Constitution of Islamic Republic of Pakistan;
(xxxv) Pakistan Times of November 2,1947; (xxxvi) Resolutions of the Security Council; (xxxvii) "Inside Kashmir" by Prem Nath Baza z; (xxxviii) "Tragedy in Kashmir" by A.H. Suhrawardy; etc.
47. We do not propose to cite the relevant parts from the aforesaid sources, as we feel satisfied to quote some of the excerpts from the leading authorities to ascertain the geographical status of the Northern Areas.
48. In Census of India, 1911, Volume XX, Part I, REPORT ON KASHMIR, administrative set up of the State, as divided at the relevant time, was described at page 6. The Province of Jammu comprised of:
(i) Jammu;
(ii) Jasrota;
(iii) Udhampur;
(iv) Reasi; and
(v) Mirpur districts.
Kashmir Province comprised of:
(i) Kashmir North;
(ii) Kashmir South; and
(iii) Muzaffarabad.
The Frontier districts comprised of:
(i) Ladakh; and
(ii) Gilgit.
The internal jagirs and dependencies were described as:
(i) Poonch;
(ii) Bhadarwah; and
(iii) Chaneni.
In Frontier illaqas, petty chiefships in feudatory relations with the State, were described as:
(i) Punial;
(ii) Ishkoman;
(iii) Yasin (with Kuh and Ghizar);
(iv) Hunza;
(v) Nagar; and
(vi) Chilas.
Another village lying in Tibetan territory as an isolated unit, which belonged to the State, was "Mansar village".
This administrative description was followed in the subsequent reports for the years ,1921,1931 and 1941. __ ; The position which emerged in 1941, vide the census Report described above, in respect of Frontier districts, was as:
(i) Ladakh, with Skardu and Kargil as Tehsils;
(ii) Gilgit, with Gilgit Wazarat and Astore as tehsils:
(iii) Frontier illaqas, comprising Punial, Ishkoman, Yasin, Kuh, Ghizar Hunza, Nagar and Chilas.
49. The New Encyclopaedia Britannica , at page 266, described the status of Gilgit as: "GILGIT, town, administrative headquarters of the Gilgit Agency is the Pakistani-held sector of Jammu and Kashmir State in the northwestern Indian sub-continent. Located on the Gilgit river, the town was once a Buddhist centre and now serves as a frontier station for local, tribal areas. Its economy is mainly agricultural with wheat, corn (maize), and barley as the main crops. The main south-west routes to the Srinagar lies through the Babusar Pass at 14,900 ft. (4,540 m).
Gilgit agency with an area of 15,184 sq ml (39,326 sq. Km), lies in the Himalayas and is bordered on the south by the Indus river. It is drained by the Gilgit and Hunza rivers. In 1934 the region was divided into Gilgit leased area and Gilgit Wazarat. Its only large town is Gilgit. Pop. (latest est.) town, 4,671; (latest census) agency, 176,242."
50. 'The Emergence of Pakistan", written by Chaudhry Muhammad Ali, former Prime Minister of Pakistan, described the position of Northern areas at pages 281, 282, 297 and 298 as: "Kashmir, or to give its full name, the State of Jammu and Kashmir, is the northernmost part of the Indo-Pakistan sub-continent. Its area of 84,471 square miles was the biggest of any state in India.
Its international boundaries with Tibet, China, Afghanistan and, but for a small intervening strip, with Russia, give it great strategic importance. Owing to its mountainous character the state was sparsely populated except in the beautiful valley of Kashmir. The total population of the state, according to the 1941 census, was about 4,000,000, of whom 77 percent were Muslims. The Muslims were in a majority in every province of the state; there was a 93 percent Muslim population in the Kashmir province; 61 percent, in Jammu province; and almost 100 percent, in the northern region of Gilgit. In Ladakh, which adjoin Tibet, there was a small Buddhist population " (Pages 281 and 282).
"While these discussions between the governments of India and Pakistan were proceeding, a local revolution occurred in Gilgit in the far north of Kashmir. The area is mountainous and its only communications with the rest of the state are two high passes that are snow-bound in winter. The population is almost wholly Muslim. Although Gilgit formed part of the state of Jammu and Kashmir, it was administered by the British Government of India through a political agent. When Independence was declared, the area was retroceded by a Dogra Governor. When the unexpected news of the Maharaja's accession to India reached Gilgit, the people were outraged and decided to throw off the Maharaja's yoke. On October 31, the Hindu Governor was taken into custody by the Gilgit Scouts, and on November 2, the Pakistan flag was hoisted amidst popular acclaim. In response to a request to take over the administration, the Pakistan government flew a representative to Gilgit on November 14. A Jit tie later, the rulers of Hunza and Nagir, which are comprised in the Gilgit Agency, requested accession to Pakistan. Since then, the whole area has' been administered by the Pakistan government and has remained outside the arena of conflict in Kashmir." (Pages 297 and 298).
Alhaj Maulvi Hashmatullah Khan Lakhnavi, in his Book 'HAAREEKH-E- JAMMU", Chapter IV, at pages 805 to 815, described the position of Northern areas in the same manner as disclosed in "Emergence of Pakistan".
In "Kashmir Saga" authored by Sardar Muhammad Ibrahim Khan, founder President of Azad Jammu and Kashmir, the status and geographical position of Gilgit and other Northern areas was described at pages 11, 50, 73, 76,136, 209 and 225.
Mr Josef Korbel, Member of the United Nations Commission for India and Pakistan,, in his book "Danger in Kashmir", at pages 5,6, 92 and 202, described: The term "Kashmir", as is generally used, is actually not accurate. It applies to one part of the entire territory, the official name of which is the State of Jammu and Kashmir. The state consists of several regions. Its heart is the famous Vale of Kashmir. South of it is the Jammu Province, to the east is Ladakh, and north of it, Baltistan; farther north are the regions of Hunza and Nagir, and west of them, the Gilgit Agency, composed of several political districts. West of the Vale are the districts of Muzaffarabad, Riasi, Poonch and Mirpur.
Kashmir's irregular borders, many miles of which are as yet not internationally determined, touch a number of States. Beginning at its most northeasterly point-, .Kashmir borders upon Sinking, the line funning south and east for some 400 miles; then for about 450 miles it finds itself neighbour to Tibet. Between India to the south and Kashmir to the north, the border continues for some 350 miles, then joins the boundary of Pakistan and turning northwest for about 700 miles finds Afghanistan. Here the border swings east for about 160 miles, where it ends in a somewhat unclear situation- on some maps it joins the Soviet Union for about 20 miles, while on the others (including some Russians maps) it ends at common point with the borders of both Sinking and Russia."
(Pages 5 & 6). . "Only the region, - Gilgit - was not affected by the violent struggle. Here the people seized the Maharaja's agent and through a bloodless revolution established their own local government, which immediately acceded to Pakistan. The Karachi government, however, cautiously refrained from accepting the act of accession, possibly because it feared that such acceptance might imply their approval of a division of the state." (Page 92)
" In general, one would say that the western and northwestern areas of the state of Jammu and Kashmir form part of Pakistan, tied with her by the strong links of Islam, though this has not as yet found expression in any formal act. Legally they continue to be part of the state of Jammu and Kashmir. Their individual regions enjoy rights of wide autonomy, but they are far from being democratic. This can be partly explained as a consequence of the old feudal traditions of their primitive society and partly by the necessities of the war. But the internal organisation of the Azad territory is not the problem. Rather, it is that as the year go by,; the people continue to see the with anger over their enforced separation from their fellow countrymen on the other side of the cease- fire line. It is in this respect that the policy of their leaders, if it is not extraordinarily wise and prudent, may have far reaching and disastrous consequences for the free world." (Page 202).
Kam Singh, in his book "Heir Apparent" has described at page 52, as: " A bare glance at any map of India at the time is sufficient to highlight the unique geographical location of this State, with boundaries that abutted both India and Pakistan, s also Tibet in the east and separated from the Soviet Union in the north only by a narrow strip of Afghan territory. I have mentioned earlier the special British interest in the northern province of Gilgit, and several historians have built a whole the sis around the consent determination of the British to dominate this crucially strategic area. Indeed as far back as 1935 my father had been pressurized by the British into leasing the Gilgit^Agency to them for sixty years. To add to the complexity of the ^mutuation, the. State was composed in its various regions of people belonging to vastly different ethnic, cultural and religious groups. Thus the valley was inhabited predominantly by Sunni Muslims with a small community of Shias, Sikhs and the redoubtable Kashmiri Pandits; Jammu predominantly by Dogra Hindus with a significant Muslim component, the western strip from Muzaffarpur to Mirpur by Punjabi Muslim; Gilgit. Skardu and Kargil . Bv Shia Muslims: and Ladakh bv Lamaistic Buddhists. This extraordinary patch-work was, of course, the handiwork of my great ancestor Maharaja Gulab Singh who carved out the State with consummate skill in the middle of the nineteenth century."
In "Crisis in Kashmir", Alastair Lamb has described the position of the State, at pages 17 and 18, as: "In fact, the State contains at least five distinct regions. First, there is Kashmir proper, the so called Vale along the upper reaches of the Jhelum River with its capital at Srinagar. Second, there is the State of Jammu, with its centre at Jammu city. Third, there is the district Poonch: and fourth, the very extensive tract of Ladakh and Baltistan. Finally, in the north-west is the Gilgit region, comprising Gilgit. Gilgit Wazarat. Gilgit Agency. Yasin. Ishkuman, Hunza and Nagar, The combination of these various tracts under a single administration took place during the course of the nineteenth century."
The late Major Arthur Neve, in his book "The Legacy of Kashmir", published in 1945, described the position of the State as: "The Sikhs conquered Kashmir in 1810, and held it till the death of Ranjit Singh.
Meanwhile the Raja of Jammu, Gulab Singh, was extending his conquests. Ladakh, Skardo, Gilgit and Astore were annexed. Partly with the view of detaching him from the Sikh power, then threatening our borders, he was secured by treaty in possession of the newly conquered territory, and the Valley of Kashmir was also bestowed on him. He died during the Mutiny when his troops assisted in the storming of Delhi. His son, Ranbir Singh, ruled till 1885, and was followed by the late Maharaja Sir Partab Singh, who died in 1925 and was succeeded by H.H. Major-General Sir Hari Singh."
Sino-Pakistan Treaty relating to international borders, was executed on March 2, 1963. The preamble of the treaty, part of Article II and Article VI, relevant to the proposition under consideration, are reproduced: "The Government of the People's Republic of China and the Government of Pakistan.
Having agreed with a view to ensuring the prevailing peace and tranquillity on the border, to formally delimit and demarcate the boundary between China's Sinkiang and the contiguous areas, the defence of which is under the actual control of Pakistan in a spirit of fairness, reasonableness, mutual, understanding and mutual accommodation and on the basis of Ten Principles as enunciated in the Bandung Conference: Being convinced that this would not only give full expression to the desire of the peoples of China and Pakistan for developing good neighbourly and friendly relations but also help safeguard Asian and world peace: Have resolved for this purpose to conclude the present Agreement and appointed as their respective plenipotentiaries..,."
ARTICLE II "1. In accordance with the principle expounded in Article I of the present Agreement, the two parties have fixed as follows the alignment of the entire boundary line between China's Sinkiang and the contiguous areas the defence of which is under the actual control of Pakistan."
ARTICLE IV "The two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations with the Government of the People's Republic of China on the boundary as described in Article II of the present Agreement, of Kashmir, so as to sign a boundary treaty to replace the present Agreement.
Provided that in the event of that sovereign authority being Pakistan, the provisions of this Agreement and of the aforesaid Protocol shall be maintained in the formal boundary treaty to be signed between Pakistan and the People's Republic of China."
Sir Muhammad Zafarullah Khan, Foreign Minister of Pakistan, in his speech made in the. Security Council on January I6, 1948, described the position of the State, including Gilgit, as: "We now turn to the State of Kashmir itself. This State was purchased by the great-grandfather of the present Ruler of Kashmir from the British East India Company in 1846 for 7,500,000 rupees.
Roughly this is less than $ 2,500,000.
The population of Kashmir is distributed communally as follows: In Kashmir proper, apart from Jammu, 93.5 per cent are Muslims. Sixty- two per cent of the population of Jammu are Muslims. In the combined Jammu and Kashmir State, 78 per cent are Muslims. The total population is approximately 4,000,000.
Gilgit, which is the high mountain region in the North-West, a part of which borders on the USSR, is entirely Muslim. The total area of the State, which is largely composed of high mountains and barren hills, is 82,000 square miles. The region is famous for its beauty. The people of this State are similarly famous. Their high artistic talents are well known. What is not fully known is the depth of misery to which they have been reduced by a century of unmitigated tyranny and oppression under Dogra rule until it is difficult to say which is the greater tragedy to a Kashmiri: his life or his death. Death often provides release from the unbroken chain of suffering, misery and privation which begins in the cradle and ends only in the grave."
51. There is agreement among various celebrated writers that close to the last decade of the nineteenth century, the Czar of Russia manipulated to extend his control in the neighbouring areas of Afghanistan and Sinkiang. The British authorities ruling India, got alert. Thus, in consideration of strengthening the defence of adjoining areas lying on the north-west boundaries of the State, secured pernvssion from the ruler of the State to appoint their political agent in the northern areas.
With the approval of the Maharaja, political agent was appointed, whose seat of administration was in Gilgit. Subsequently, in view of further political developments in the surroundings of the northern areas, the British Government of India persuaded the Maharaja to grant lease of part of the area of Gilgit. Thus, the British Government secured lease of the area of Gilgit Wazarat for a period of sixty years. The lease was signed on March 26,1935. As a result of the treaty of lease, changes were made in the nomenclature of the administrative units as:
(1) Ladakh district (comprising tehsils of Leh, Kargil and Skardu;
(2) Aslore District (formerly part of Gilgit District);
(3) Gilgit (Leased Area) district;
(4) Gilgit Agency.
The Census Report of 1941 explicitly described: "The Gilgit Agency has a total area of 14,680 square miles and consists of the illaqas of Hunza, Nagar, Punial, Ishkoman, Yasin, Kuh, Ghizar and Chilas. The whole area is administered on behalf of his Highness' Government by the Government of India's political agent at Gilgit. These illaqas are tributary to his Highness and form part of the territories of the Jammu and Kashmir State."
52. In order to properly appreciate and for convenience of settlement of the controversy, it is deemed relevant to reproduce the lease treaty: "The treaty of Jammu signed between the Government of British India and Maharaja of Jammu and Kashmir, at Jammu, on March 26, 1935 provides as follows: Clause I. That the Viceroy of India is authorised after ratification of the treaty, to take over the Military and Civil administration of that part of the District (Wazarat) Gilgit of the State of Jammu and Kashmir, which is situated on the right bank of river Indus, subject to the condition that the area mentioned above shall remain included within the territorial boundaries of the State of Jammu and Kashmir under the Maharaja of Kashmir.
Clause II. In. Proof of the fact that the leased area continues to be a part of His Highness' territories of Jammu and Kashmir, On the occasion of His Highness' Birthday, Baisakhi, Dosehra, Basant and on other occasions to be decided between the parties, administration of the leased area shall pay formal tributes to the sovereignty of His Highness the Maharaja of Kashmir. The flag of His Highness shall always fly at the official headquarters of the Agency.
Clause III. The British armed forces shall not pass in ordinary circumstances through the part of Wazarat Gilgit situated on left bank of river Indus.
Clause IV. All rights regarding minerals in the leased area stand reserved in favour of His Highness.
Clause V. This lease shall be in operation for a period of sixty years after which it shall terminate."
The terms of the lease explicitly reflect that sovereignty in respect of the leased area was retained by the Maharaja. The. British Indian Government accepted its position, as a lessee.
53. An incidental event which corroborates the aforesaid position pertains to restoration of administrative control of the Northern Areas to the State Government, on enforcement of the Independence Act of 1947. Section 7 (I) (b) of the Independence Act, being relevant to the point under consideration, is reproduced: "As from the appointed day, the suzerainty of His Majesty over the Indian States shall lapse and with it all treaties and agreements in force at the date of the passing of this Act between His Majesty and rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof and all powers, rights, authority or jurisdiction exercised by His Majesty at that date, in or, in relation to Indian States by treaty grant, usage, or otherwise."
It is evident from the aforesaid provisions that on lapse of suzerainty of the British Crown over the Indian States, all treaties and agreements in force between the British Crown and the rulers of States equally lapsed. By virtue of the aforesaid legal position, it Was accepted that the treaty of lease made between the State Government and the Government of British India lapsed. Thus, the administrative control of the areas was restored to the State Government. The State Government, in consequence of lapse of the fease treaty, appointed its own Governor (Brigadier Ghansara Singh) on July 17,1947 (Sawan I6, 2004 Bik) vide Order No.B. 480/47-P.B. The order of appointment is reproduced: "CHIEF SECRETARIAT- POLITICAL ORDER NO. B.480/47-P.B.
17th July, 1947.
His Highness the Maharaja Bahadur has been pleased to command that:-
(1) The administration of the entire Gilgit territory i.e. Gilgit Wazarat north of the Indus and all Political Districts be taken over on lst August.
(2) The above together with Bunji will form the Gilgit Frontier Province.
(3) A post of Governor in the grade of 700-40-900 with the usual Frontier Allowance and a sumptuary allowance of Rs.200 p.m. Is sanctioned.
(4) Brigadier Ghansara Singh is appointed Governor. He will draw his personal pay Rs.1,000 together with Frontier and sumptuary allowances.
(5) For Revenue and general administration work 3 Officers- one Revenue Assistant and two Naib Tehsildars- are sanctioned. These officers will draw Frontier allowances according to rules.
Brigadier Ghansara Singh will personally select the above officers.
(6) Services of two British Officers- one as Assistant Governor Chilas and one as Commandant Gilgit Scouts be taken over for a period of one year each. The emoluments of these officers will be sanctioned later when we know the class of officers we are getting.
(7) The Company stationed at Bunji may be re-inforced by one more Company.
(8) The Budget for the Gilgit Frontier Province will be sanctioned when full details are known and have been scrutinized.
By Command.
(Sd.) R.C. KAK Prime Minister."
Brigadier Ghansara Singh reached Gilgit on July 30, 1947 and took over the administrative control of the Northern Areas as Governor, by relieving It. Col. Becon, a British Officer previously acting as Political Agent. Brigadier Ghansara Singh has given his own account of his posting as Governor of Gilgit, in "GILGIT BEFORE 1947". Relevant paras are 6, 7, 8 and 11, which are reproduced: "6. I reached Gilgit on 30 July, 1947 to take over as Governor of Gilgit and its Agency.
7. At that time It. Colonel Becon, a British officer was the Political Agent. He was assisted by three or four British Officers in the Administration.
8. The General impression was that the British officers did not like the change over, but the Gilgit public, however,, was highly pleased with the transfer of power and they welcomed the change, but were surprised to find that I had come all alone. The same evening Major Brown, the Commandant, and JCOs of Gilgit Scouts came to pay respects to Major General Scott and to me. During the course of our conversation Sub-Major Babur Khan of Scouts and all the JCOs clearly stated that they wanted to serve Pakistan. They will serve the State if their demands were adequately met.
Major General Scott noted down all their demands which were about a dozen in number and promised that he will obtain sanction and communicate the same to the Governor and they need not worry and must serve the State. After dispersal, I told Major General Scott, that 3 or 4 demands were most unreasonable and these will not be acceded by the Government but Be promised for obtaining special sanction."
"11. Thus the whole charge of the Gilgit and Gilgit Agency was taken over......"
55. The geographical and administrative status of the Northern Areas also finds its mention in the recent publication, titled "Transfer of Power 1942-47". In volume 12, events relating to consequences of set up of new dominions, were described at page 237. It refers to the provisions of Section 7 (1)
(b) of the Independence Act, under which the suzerainty of the British Crown lapsed and the life of agreements and treaties, in force on the date, between his Majesty's Government and the Princely States, came to an end.
56. Another relevant authority on the point is "A Collection of Treaties, Engagements And Sanads Relating to India and Neighbouring Countries", compiled by C.U. Aitchison. In volume XI, at pages 246 to 250, the details of annexation of Ladakh, Baltistan, Gilgit, Yasin, Darel, Tangir, Chilas etc. Are described lucidly. We do not propose to reproduce the same to avoid repetition, as we have already quoted from the leading authorities. We may add here that the text of Sanads granted by the Maharaja to the Rajas of Nagar, Hunza, people of Gor and Thor are also appended with the aforesaid volume.
57. Next, we pass on to various laws of the State, which governed^ the aforesaid areas under the rule of the Maharaja. Among the laws on the statute book of the State, we propose to refer to the Gilgit Scouts, Laws, Act No. XVl of 1917/2004-Bik, Jammu and Kashmir Land Revenue Act, 1996-Bik, the Tenancy Act, 1918, the Game Laws Notification, 1970-Bik, Prevention of Sedition Act, 1971-Bik and the Jammu and Kashmir Constitution Act, 1996-Bik. The Gilgit Scouts Law, Act No.XVI of 1917/2004- Bik is important and relevant to the proposition, as we find reference to the liberation of Gilgit by Gilgit Scouts assisted by the State army and local people of the areas. We propose to reproduce the pre-amble, Section 1, sub-section (2) and Section 3 of the Act as, in our estimation, these provisions sufficiently reflect the spirit of law relating to legal and political status of the areas. These are reproduced: WHEREAS it is expedient to provide for the regulation of Gilgit Scouts in the Gilgit Frontier Province: "1.(2) It extends to the Officers, Indian Officers and other members of the Gilgit Scouts whether serving within or without the limits of the Territories pf His Highness the Maharaja Bahadur."
3. There shall continue to be a force (maintained by His Highness the Maharaja Bahadur and called the Gilgit Scouts) for the better protection and administration of the external frontier of the territories of His Highness the Maharaja Bahadur within the limits of or adjoining, the Gilgit Frontier Province or any part thereof."
Section 6 of the Land Revenue Act pertains to Revenue officers' classes and powers in the state. It is reproduced: "6.(a) There shall be the following classes of Revenue Officers:- Commissioner, Collector, Assistant Collector of the 1st Class, and Assistant Collector of the 2nd class.
(b) ...
(c) Until a notification is issued to the contrary, the following officers shall exercise the powers noted against their names: Revenue Commissioner Commissioner Governors of Jammu Collector and Kashmir.
Wazirs Wazarat Ladakh Collector and Gilgit.
Wazir-i-Wazarat Assistant Collector of \ the 1st Class.
Revenue Assistant. Assistant Collector of the 2nd Class. {{Table}} Section 6 of the Tenancy Act is relevant to the proposition, as it relates to the Districts of Ladakh and Gilgit. By virtue of the provisions, occupancy tenancy rights were granted to various classes of tenants in different areas of the State Tenants eligible to occupancy tenancy in the Districts of Ladakh and Gilgit, were described as:- "In the Districts of Ladakh and Gilgit CLASS I.-Tenants whose possession of their tenancies "began in or before the Sam vat year 1942.
CLASS 2.- Tenants whose possession began after the Samvat year 1942, but not later than the Samvat year 1951.
CLASS 3.- Tenants whose possession began after the Samvat year 1951, but not later than the Samvat year 1965.
CLASS 4.- Tenants whose possession began after the Samvat year 1965."
58. Under the provisions of "Prevention of Sedition Act, 1971-Bik.", the term .'Governor' was defined under Section 2(3). It is reproduced: " 'Governor' means the Governors of Jammu and Kashmir and the Wazirs of Leh and Gilgit within their respective jurisdiction."
59. The- Game Laws Notification, 1970-Bik., described the areas of jurisdiction to which the notification applied. It is evident from the provisions of the notification that the conditions of game laws extended upto Ladakh, Baltistan and Gilgit.
Different other laws of the State exclusively applicable to Northern Areas are:
(i) The River Rules, 1965-Bik.;
(ii) The Fisheries Act, 1960-Bik.;
(iii) Rules Placing Restriction on Removal of Females from Baltistan, 1958-Bikrami;
(iv) The Octroi Act, 1958-Bikrami;
(v) The Arms and Ammunition Rules, 1958-Bik.;
(vi) The Court Fee Act.
All these laws were enforced in the State including Gilgit and Ladakh- (including Frontier illaqas).
60. It is noticed elsewhere that the people of the State resisted the repressive activities of the Dogra rule and earnestly endeavoured for their civil rights and liberties. The movement gained momentum in 1931, when a Law Reforms. Commission was appointed. In consequence of the recommendations of the Commission (Glancy Commission), the Maharaja agreed to establish a Legislative Assembly, called the Praja Sabha. The Jammu and Kashmir Constitution Act was enforced in 1996-Bikrami. The Assembly was partly representative as some of the members were nominated by the ruler of the State. Among them, five members were nominated from Ladakh and Gilgit; two were Buddhist from Ladakh Wazarat, One Muslim from Skardu, one Muslim, from Kargil and one Muslim from Gilgit Wazarat. The last elections in the State (before independence of 1947) were held in January, 1947. The nominated members from Ladakh and Gilgit, were:
1. Raja Jigmat Dadool of stoke. Ladakh Wazarat (Buddhist)
2. Nono Chewing Rinchen. " " '
3. Raja Fateh Ali Khan of Skardu. Skardu Tehsil (Muslim)
4. M.r Ahmad Ali Khan Skardu Tehsil (Muslim)
5.Raja Raza Khan. Gilgit Wazarat (Muslim)
6. M. Mohad Jawad Ansari. Northern Wazarat Kashmir (Muslim)
61. We are also in possession of record of the Assembly relating to its budgets, whereby development funds were allocated for various development schemes of Northern Areas. In the budget of 1940-41 (1997-98 Bik), column of 'expenditure' reflected the amount for grant of allowance to clerks and other subordinate administrative staff posted in Gilgit Agency. The relevant provision appears at page 118 of the Budget Book. Likewise, at page 220, amount was reserved for construction and repairs of roads in Gilgit Division. In the budget of 1945-46 (2002 Bik), in the column of local funds (education cess), included, among others, Gilgit. A special provision of allowance was made for Chowkidars posted in Gilgit, in the column of 'special expenditure'.
Likewise, funds were allocated for teachers posted in Gilgit and Skardu. Funds were also provided for the Governor of vasin, Mir of Nagar, Governor of Punial, Governor of Kuh and Ghizar, etc.
62. On liberation of the territories of the State and formation of the Provisional Government with its headquarters at Muzaffarabad, the pensioners of- the Northern Areas received their pensions from the treasury of Azad Jammu and Kashmir, with effect from the emergence of the provisional revolutionary Government till January, 1949. The record is available, with the Accountant General of Azad Jammu and Kashmir. The number of the pensioners of the Northern Areas, who were receiving pension from the treasury of Azad Government, has been shown as 129.
All the aforesaid factors lead to an undisputable conclusion that the Northern Areas have been and are part of Jammu and Kashmir State.
63. As a counter check, we further proceed to examine the scope of territories of Pakistan so as to analyse as to winafher the Northern areas, in fact, fall within the purview of Pakistan territorian or not. We take the benefit of the provisions of the Independence Act of 1947, which defined the limits of Pakistan territories,- including East Pakistan, now Bangla Desh. Section 2 of the Act provided that subject to the provisions of sub-sections (3) and (4), the territories of India shall be the territories under the sovereignty of His Majesty which, immediately before the appointed day, were included in British. India, except the territories which, under sub-section (2), are to be the territories of Pakistan. Under Section 2(1) of the Act, the dominion of India comprised such territories which formed part of the British India under the sovereignty of British Crown except the territories which comprised Pakistan.
Sub-section (2) of Section 2 laid down that subject to sub-sections (3) and (4), the territories of Pakistan shall be:
(a) the territories which, on the appointed day, were included in the Provinces of East Bengal and West Punjab as constituted under the two following sub-sections;
(b) the territories which, on the day of passing of the Act, were included in the Province of Sind and the chief Commissioner's Province of British Baluchistan;
(c) the North-West Frontier Province provided on or before , the appointed day, the majority of the citizens of that Province, voted in favour of Pakistan and it was so declared by the Governor- General.
Sub-section (4) of Section 2 further provided that without prejudice to the generality of the provisions of sub-section (3), nothing in the Section shall be construed as preventing the accession of Indian States to either of the new dominions.
64. The aforesaid scheme of division of the sub-continent, namely, British India as it was under the sovereignty of British Crown, leads to the conclusion that the territories which comprised Pakistan were East Bengal, West Punjab, Province of Sind, Chief Commissioner's Province of British Baluchistan, North- West Frontier Province and the territories of such other States which acceded to Pakistan on, before or after August 15,1947.
65. The territorial areas of Pakistan were further elaborated in the Constitutions of Islamic Republic of Pakistan of 1956, 1962 and 1973. In the present Constitution, under Section (2), the territories of Pakistan were listed as:
(a) The Provinces of Baluchistan, North West Frontier, the Punjab and Sind;
(b) The Islamabad capital territory;
(c) The Federally administered tribal areas (FATA); and
(d) such States and territories as are or may be included in Pakistan whether by accession or otherwise.
It is quite evident from the aforesaid description of the territories of Pakistan that the Northern areas or, for that matter, any other part of Jammu and Kashmir State, are not claimed as part of Pakistan.
66. The rules of procedure applicable to writ petitions are the same which apply to civil actions.
Order 8 of the Code of Civil Procedure pertains to written statements and averments made therein.
Rule 3 envisages that it shall not be sufficient for defendant to deny generally but to deal specifically with each allegation of fact of which he does not admit the truth. Rule 4 makes it imperative for the defendant not to deny evasively but to answer the point of substance expressly.
Likewise, Rule 5 postulates that an allegation of fact in the plaint, if not denied specifically or by necessary implication, it shall be deemed as admitted.
67. Respondent No.1, in its written statement, have not taken a definite stand in respect of geographical and political status of the Northern Areas. It has answered the allegation made in the petition evasively and emphasised that is was political proposition, as such it should not be attempted for its settlement. The allegation of fact that the Northern areas are part of Jammu and Kashmir State has not been denied specifically or by necessary implication. Failure of the respondent to controvert the question of fact, appears to be an attempt to misdirect from the real question in controversy. We, therefore, conclude that respondent No.1 deliberately avoided to deny the allegation of the petitioners that the Northern areas are part of Jammu and Kashmir State.
Thus, it shall amount to an admission. This view finds support from Muhammad Ashraf's case, P.L.D.
1983 SC (AJ&K)
181. That was a case of pre-emption. Plaintiffs alleged their relationship with the vendor. Defendant-vendee, instead of denying or admitting the claim of plaintiff expressly, disclosed his ignorance about the relationship of the plaintiff with the vendor. The reply of defendant-vendee, for its not being a denial specific or by implication, was construed as admission. In Muhammad Lai's case, P.L.D. 1979 S.C. (AJ&K) 15, the vendee-defendant failed to deny the claim of the pre-emptor specifically. The learned Judges of the Supreme Court observed that the claim of the pre-emptor was impliedly admitted. In Ramrao Laxmikant Shirkhedkar's case, A.I.R.
1963 Bombay 121, it was observed: "Petitioner asserting that Government had issued certain instructions in the matter of strike by Government servants. No averment in the return filed on behalf of respondents either denying or affirming of such instructions. On normal rules of pleading it must be held that the issuing of such instructions, as alleged by the petitioner, had not been denied and, therefore, must be taken to have been accepted."
In Badat and Co. Bombay's case, A.I.R. 1964 Supreme Court 538. The rules of procedure envisaged in Rules T, 4 and 5 of Order 8 of the Code of Civil Procedure were construed as: "Rules 3,4 and 5 of Order 8 of C.P.C, form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its noncompliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. But under the proviso to Rule 5 -the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Court presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the original side of the Bombay High Court the pleadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for non-suiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality and the traditions and conventions of a Court wherein such pleadings are filed."
In Nimar Cotton Press's case, AI.R. 1956 Nagpur 27, it was observed: "" An express denial of an allegation in 4 statement of claim is called a traverse. When the matter is within the knowledge of the defendant, he generally denies any statement which he disputes.
When it is not within his own knowledge, he usually "does not admit" it. The proceedings under Article 226 are civil proceedings and, subject to the rules made by the High Court to regulate proceedings under that Article, are regulated by the Code of Civil Procedure. Hence averments in petition under Article 226 which are not traversed by the respondents must be held to be admitted."
The tenor of the aforesaid authorities leads to the conclusion that it is enjoined upon defendant to traverse an allegation made in the petition, expressly or by necessary implication. Otherwise, it has to be deemed as an admission of the allegation. In Badat and Co. Bombay's case (A.I.R. 1964 Supreme Court 538), the learned Judges of the Supreme Court (India) extensively dealt with the proposition and concluded that written statement must deal specifically with each allegation of fact in the plaint and when defendant denies such a fact, he must not do so evasively but answer the point of substance; when the denial of the fact is not specific but evasive, such fact shall be taken as admitted. The scope of the proviso to Rule 5 was also construed. It was observed that the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the result of accidental slip or omission. The proviso cannot be availed by a party who designedly made vague denials. The discretion conferred under the proviso, it was held, was to be exercised having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in the locality and the traditions and conventions of a Court where such pleadings were filed. In view of the aforesaid principle, in present case, respondent No.1 cannot seek the concession of proviso, to its pleadings (written statement) so as to hold that the geographical position and political status of the Northern areas being part of Jammu and Kashmir State, as alleged by the petitioners, was traversed specifically. Therefore, our conclusions are that the respondent impliedly admitted the claim of the petitioners and agreed that the Northern areas are part of Jammu and Kashmir State.
68. Respondent No.1 placed a copy of the writ petition addressed by Qurban Ali and others against the Federation of Pakistan, in the Lahore High Court, Rawalpindi Bench. The copy of the petition was produced alongwith the written statement. Our attention was invited to the recitals of the petition and it was canvassed that the people of the Northern areas were interested to become part of Pakistan. In that context, it was prayed in the petition that the Northern areas may be integrated with a Province of Pakistan, democratic institutions may be, established and basic rights and civil liberties enshrined in the Constitution of Pakistan' may be extended to the people of the Northern areas. We have examined the grounds raised in the petition and have also considered its implication on the present petition. First of all, we have to examine the legal bar to the proceedings in the present petition in presence of the writ petition described above, before the Lahore High Court, Rawalpindi Bench. The parties in both the petitions are not exactly the same but the contention is partly identical, as in both the petitions, the petitioners have prayed for establishment of democratic- institutions, including independent Judiciary, grant of due representation by providing the facilities of civil liberties and basic rights admissible to their contemporaries in other parts of the State. The obvious distinction between, the two is that in the petition addressed by Qurban Ali and others, prayer is made for integration of the Northern areas with a province of Pakistan and extension of constitutional jurisdiction. In present case, conversely, the petitioners have prayed for integration of the Northern areas with Azad Jammu and Kashmir and extension of the provisions of the Azad Jammu and Kashmir Interim Constitution Act by bringing their status at par with their compatriots in Azad Jammu and Kashmir.
69. We have examined the territorial limits of Pakistan elsewhere. High Courts of Pakistan have been conferred writ jurisdiction under Article 199 of the Constitution of Pakistan, 1973. Under Article 199(l)(a)(i), (ii), (b)(i), (ii) and (c), it has been enjoined upon a High Court to make an order on the application of an aggrieved party, in either of the cases described therein, in connection with the affairs of Federation or Province or a local authority or person, in respect of any act done or omitted to be done, or proceedings taken within the territorial jurisdiction of the Court. Thus, the jurisdiction of the High Court Was restricted, within the territorial limits of the respective Province. The limitations were:
(i) the writ of the High Court cannot run beyond the territories subject to its jurisdiction: and
(ii) the person or authority to whom the writ is issued, must be within the territory subject to the jurisdiction of the High Court.
In the writ petition addressed by Qurban Ali and others, the petitioners were residents of Northern areas. The place to' which the jurisdiction of the Constitution was sought to be extended was the Northern areas. In other words, neither the petitioners nor the area in respect of which the relief was sought, were part of the Province of Punjab. In such situation, ordinarily, the petition may not be entertainable. We do riot propose to go into deep appreciation of the proposition as, prima facie, the scope of jurisdiction of Lahore High Court, Rawalpindi Bench, can be tested in the light of the provisions of Article 199. The dictum of the Supreme Court of Pakistan is readily available as a guideline to sort out the true legal position. Reference is made to Jamil Ahmad's case, P.L.D. 1969 Supreme Court 344, Haji Umar Gul's case, P.L.D. 1973 Supreme Court 544 and Abdul Rahim's case P.L.D. 1974 Supreme Court 109.
70. The other aspect of the objection may find place in the principle of law stipulated under Section 10 of the Code of Civil Procedure. Under Section 10, a bar to a subsequent suit or proceedings was enforced when the matter in issue was directly and substantially in issue in previously instituted proceedings, between the same parties and the proceedings were pending in the same or any other Court of competent jurisdiction and having like jurisdiction. We have already partly analysed the nature of the parties and the subject matter in issue. In absence of denial by the petitioners, it has to be accepted that the petition addressed by Qurban Ali and others is sub-judice before the Lahore High Court, awaiting its decision. In such situation, it has to be settled whether the present petition is maintainable or not. Our answer to the objection is that the petition under consideration may not be thrown away simply on account of institution of another petition before another High Court. Our reasons are:
(i) that the grounds raised in the petition of Qurban Ali and others reflected, in substance, that the Northern areas are not part of Pakistan and the petitioners were seeking intervention of the Lahore High Court to issue direction for integration of the areas with a Province of Pakistan;
(ii) that the provisions*of the Pakistan Constitution were not extended to the Northern areas, as such extension of the provisions of the Constitution was one of the main reliefs sought by the petitioners; and
(iii) that the Northern areas were not integral part of any Province of Pakistan.
In presence of the aforesaid admission and factual aspect, the bar to the proceedings in the present petition, as envisaged under Section 10 of the Code, was not enforceable. In support of our conclusions, we propose to refer to Ladli Parshad's case, A.I.R. 1954 Punjab 94. In that case, an application for winding up a private limited company was moved in the High Court of Lahore on May 1, 1946. During the pendency of the application, another application was filed for winding up the company in the East Punjab High Court in December, 1951. An objection was raised against the second application. It was held that under Article 13 of the High Courts (Punjab) Order, the Lahore High Court was competent to proceed with the petition. But there was no bar to the institution of second application, on similar grounds, before the High Court of East Punjab. In view of the learned Judge who spoke for the Court, the rule regulating such matters contained under Section 10 of the Code did not apply to the case, a^ it merely related to stay of one of the suits or proceedings. In present case, the case of the petitioners is on much better footing as the rules of procedure of this Court or, for that matter, any other law of the State, does not restrict the jurisdiction of this Court to proceed with a suit or proceedings which was sub-judice before a High Court of Pakistan or some other country. Therefore, we do not consider that the institution of petition by Qurban Ali and others, residents of the Northern areas, was an impediment in the disposal of the present petition.
71. Another allied but very vital aspect of the position relating to the writ petition addressed by Qurban Ali and others may not be left unnoticed, as it affects the touch-stone of the Kashmir problem, within the State of Pakistan and outside, particularly the United Nations. As the objection is likely to affect the corner stone of decades old Pakistan policy towards Kashmir problem, we deem it our duty to analyse the proposition in its true perspective. It is well known that India based its claim to the State. Of Jammu and Kashmir on the basis of the instrument of accession purported to be executed by the late ruler of the State, on October 26, 1947. The accession of the State to India was not accepted by Pakistan as, in its opinion, it was purely deceptive and fraudulent. In view of the dubious character of the so-called accession, the Indian Prime Minister invariably endeavoured to convince Pakistan that the ultimate future of the State shall be settled by the people of the State.
As the dispute could not be settled bilaterally, it was taken to the Security Council by India. In the Security Council, India reiterated its claim to the accession, but at the same time, committed that the people of the State were the sole arbiter of their fate and future and they alone shall be able to decide their destiny. The Security Council, vide its resolutions, guaranteed that the Kashmir problem shall be settled by a plebiscite under the United Nations' auspices. The United Nations Commission for India and Pakistan reiterated the unanimously accepted resolutions of the Security Council in their own detailed resolutions' unanimously passed on August 13, 1948 and January 5, 1949. These resolutions were also endorsed by both India and Pakistan.
72. In second thought, India manoeuvred to frustrate the resolutions of the Security Council and the United Nations Commission for India and Pakistan by holding elections to the Constituent Assembly of the Indian-occupied part of the State, and manipulated its endorsement of the alleged accession made by the last ruler of the State. Pakistan promptly invited attention of the Security Council to the conspiracy of India in collaboration with the leaders of the Indian-held part of the State, and exposed the scheme of India to integrate the State with the Indian Union, to frustrate the resolutions of the United Nations, the Security Council summoned its meeting and examined the complaint of Pakistan. It unanimously resolved on March 30,1951:- "Having received and noted the report of Sir Owen Dixon, the United Nations Representative for India and Pakistan, on his mission initiated by the Security Council resolution of March 14,1950.
Observing that the Governments of India and Pakistan have accepted the provisions of the United Nations Commission for India and Pakistan resolutions of August'13,1948, and January 5,1949, and have re-affirmed their desire that the future of the State of Jammu and Kashmir shall be decided through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.
Observing that on October 27, 1950, Council of "All Jammu and Kashmir National Conference" adopted a resolution recommending the convening of a Constituent Assembly for the purpose of determining the future shape and affiliations of the State of Jammu and Kashmir.
Observing further from statements of responsible authorities that action is proposed to convene such a Constituent Assembly and that the area from which such a Constituent Assembly will be elected is only a part of the whole territory of Jammu and Kashmir.
Reminding the Governments and authorities concerned of the principle embodied in the Security Council resolutions of April 21, 1948, June 3, 1948 and March 14, 1950, and the United Nations Commission for India and Pakistan resolutions of August 13, 1948, and January 5,1949. That the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed in the democratic method of a free and impartial plebiscite Conducted under the auspices of the United Nations.
Affirming that the convening of a Constituent Assembly recommended by the General Council of the "All Jammu and Kashmir National Conference" and any action that assembly might attempt to take to determine the future shape and affiliation of the entire State or and part thereof would not constitute a disposition of the State in accordance with the above principle.
73. Second attempt was made by India on identical lines in 1956. It once again manoeuvred to get the purported accession by the ruler, stamped by the Assembly of the State, the perpetuate its aggression and usurpation of the State. Pakistan, once again, invited attention of the Security Council to the conspiracy, and emphasised that India may be stopped from perpetuating its hold on the State by defeating the United Nations' resolutions. The Security Council once again rose to the occasion and re-iterated its earlier stand, in the shape of its resolution passed on January 24,1957. The resolution was passed in the following terms: THE SECURITY COUNCIL Having Heard statements from representatives of the Governments of India and Pakistan concerning the dispute over die State of Jammu - and Kashmir; Reminding the Governments and Authorities concerned of the principle embodied in its resolutions of 21 April 1948,3 June 1948,14 March 1950 and 30 March 1951, and the United Nations Commission for India and Pakistan resolutions of 13 August 1948 and 5 January 1949, that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted Under the auspices of the United Nations; Reaffirms the affirmation in its resolution of 30 March 1951 and declares that the convening of a Constituent Assembly as recommended by the General Council of the "All Jammu and Kashmir National Conference" and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or and part thereof, or action by the parties concerned in support of and such action bv the Assembly, would not constitute a disposition of the State in accordance with the above principle: Decides to continue its consideration of the dispute."
74. It is evident from the language of both the resolutions that the Security Council stead-fastly adhered to its resolutions passed on April 21, 1948, June 3, 1948, March 14, 1950 and March 30, 1950 and to the United Nations Commission for India and Pakistan's resolutions of August 13, 1948 and January 5, 1949- It affirmed that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people, expressed in the democratic method by free and impartial plebiscite conducted under auspices of the United Nations. As a caution, it denounced the proposed attempt of the Assembly and National Conference of taking any step to determine the future shape and affiliation of the entire State or any part thereof in derogation to its resolutions. It warned that any attempt to determine the future shape or affiliation of the entire State or any part thereof would not be accepted and it would not constitute a disposition of the State in accordance with the principle enunciated in the resolutions.
75. Pakistan, at all levels, adhered to the aforesaid pronouncements of the Security Council.
Therefore, no idea or scheme which is derogatory to the well- considered and consistent policy of Pakistan may be entertained at any stage. By allowing integration of Northern areas to any Province of Pakistan would tantamount to negation of the Pakistan's stance at home and in the Security Council. At first, such a derogatory step may appear beneficial to some minds, but in the larger interests of Pakistan and particularly the future of Jammu and Kashmir State, no sane person would allow disintegration of the State in any manner. This is so, as indirectly it fell in line with the Indian policy to deny the right of self-determination to the people of Jammu and Kashmir by integrating the territory under its control with the Indian Union, by striking finally the hammer of servitude and subjugation on the people of the State.
76. It will not be useless at this juncture to life the curtain from the Indian conspiracies to mislead the world opinion, to retain its hold on the State, right from the time the formula of partition of the sub-continent was announced. It may not be forgotten that the Indian leaders, despite making their individual and collective commitments, at all levels, to hold plebiscite in the State, concocted and fabricated grounds to delay the proposed plebiscite to keep the State in. Their fold. We propose to expose these conspiracies by reference to an independent source. Professor Alastair Lamb, in his celebrated treatises "KASHMIR- A DISPUTED LEGACY", edition 1991, recorded full account of political developments in the State. By dint of his deep study and research in various archives, including India, exposed the political developments which took place in late 1946 and 1947. He invited attention of the scholars interested in the Kashmir problem, to see how the Prime Ministers were changed, one after another, within a short span of time and Justice Mehr Chand Mahajan (he was member of the Boundary Commission, nominated by India) was installed as Prime Minister of Kashmir on September 18, 1948. This was a crucial time in the sub-continent and particularly in the State, as the liberation forces within the State had already swung into action. At the relevant time, he was a sitting Judge of East Punjab High Court. He obtained leave to assume the assignment on persuasion of Patel and sanction of Jawahar Lai Nehru. Alastair Lamb described all the relevant events in chronological order, as they enveloped the political scenario at the time. He highlighted the hyp ocracy of Indian leadership, in his own words, and we extensively quote the relevant excerpts: "Immediately after the departure from the State ui Jammu and Kashmir of Major-General Scott on 22nd September (and now safer from British observation) some active steps were taken to strengthen links with India by providing Srinagar airfield with wireless equipment to make it more suitable for bad weather operation. Arrangements were made for the supply of extra arms and ammunition to the Jammu and Kashmir State Armed Forces through an Indian Military adviser, It.- Col. Kashmir Singh Katoch (a regular officer in the Indian Army, who was a son of Janak Singh, then still Prime Minister of Jammu and Kashmir, and related to Maharaja Hari Singh), who was established in Srinagar at the beginning of October (and who remained there throughout the accession crisis); and by the middle of the month war material was being flown into the State in significant quantities. Staff preparations were made for Indian troop concentrations at Madhopur in the Pathankot tehsil near the Jammu border as potential reinforcements for the State Army. The improvement of the road from Jammu to Indian frontier in the direction of Pathankot, begun around the time of the Transfer of Power, was accelerated and telegraphic lines of communication were expanded. Batra, the Deputy Prime Minister of the 'State, was now in regular contact not only with Sardar Vallabhbhai Patel but also with Baldev Singh, the Defence Minister in the Government of India. No doubt there were other links between Srinagar and New Delhi: for example D.P, Dhar, a young Kashmiri Brahmin (Pandit) who was beginning his political career, certainly possessed close contacts at the higher level of Indian political life.
All this activity, recorded in considerable detail in the first volume of Sardar Vallabhbhai Patel's correspondence which was published in 1971,, makes it clear that both Sardar Vallabhbhai Patel and Baldev Singh were heavily, engaged in the planning of some kind of Indian military intervention in the State of Jammu and Kashmir, if only on a contingency basis, by at least 13 September 1947; and that by the third week of October a substantial foundation for such an operation had been laid....." (Page 130)
" The Sikh Maharaja of Patiala, for example, in the first two weeks of October 1947 provided Ms colleague in the State of Jammu and Kashmir with a battalion of infantry and a battery of mountain artillery from his own State Armed Forces; perhaps this had been discussed when the Maharaja of Patiala visited Srinagar in July 1947. When Indian troops finally intervened in Jammu and Kashmir on 27 October 1947 they found, apparently to their surprise, Patiala gunners already guarding the vital Srinagar airfield, where they had been encamped since at least 17 October. The Patiala infantry were stationed in Jammu as reinforcements for the garrison of the Maharaja's winter capital. How these troops were transported is not known: it is possible that they were moved as part off the supply convoys despatched to Jammu and Srinagar by the Government of India in reply, to the alleged Pakistani "blockade". Shortly after the formal intervention of the Indian Army the Maharaja of Patiala, Yadavindra Singh, came to Jammu to comman his contingent in person.
In that by October 1947 the Patiala State forces had by the terms of the State's accession to India (as part of the Patiala and East Punjab States Union) on S May, 1947 come under the control of the Government of Indian Union at the moment of the Transfer of Power, this deployment of Patiala State troops raises a number of questions which have jet to be answered, not least how they actually managed to reach the State of Jammu and Kashmir without the fact being reported to the senior British commanders still in the service of the Indian Army (who would rarely have informed Mountbatten had they known). The arrival of such exotic forces could hardly have escaped the notice of the Indian Army observer in the State, It.- Colonel Kashmir Singh Katoch)...." (Page 131)
" If Mahajan's account of his travels is true, and he was quite emphatic that he refused to return to the State until Srinagar airfield was firmly in Indian hands (reflecting both the Maharaja's determination that Indian assistance should physically arrive before he finally committed himself to handing power to Sheikh Abdullah and, one must presume, Mahajan's personal reluctance to run the slightest risk of falling into the hands of Pathans), then it would appear that the Indian intervention actually took place before the formalities of Accession had been completed...."(Page 136)
If we accept the chronology indicated by Mahajan rather than V.P. Menon, them it rather looks as if the Maharaja's original formal (as opposed to the various covert arrangements) request for Indian military ^aid, advanced on his behalf by Batra on 24 October but not accepted by the Indian side, made no reference to Sheikh Abdullah being given office, ail idea which the Maharaja found extremely distasteful; and it is probable, moreover, that accession was not offered at this stage.
The Sheikh Abdullah feature, discussed by Nehru with Sheikh Abdullah himself on 25 October, was surely finalised at the meeting at Nehru's house on the 26 October already described. A draft letter would have then prepared for the Maharaja's signatures, that letter published as hating originated from him on 26 October 'though, in fact, it was only brought to him in Jammu on the following day alongwith Mountbatten's acceptance of its terms. This charade, of course, of which Moutbatten must have been aware (unless he had been shown a fraudulently signed letter from the Maharaja, and perhaps, Menon had lied to him about a journey to Kashmir with Mahajan on 26 October), would have required a measure of falsification of the record both as to chronology and as to origination of. The proposals. As we have seen in Chapter 4, such manipulations of documentation were not unknown in the British Government of India's conduct of political matters. The actual Instrument of Accession (which made no mention of the crucial Sheikh Abdullah element and was, therefore, in the context of the moment just a formality) "Was, in fact, no more than a printed form, not unlike an application for a driving licence, with blank spaces left for the name of the State, the signature of the Maharaja and the date: and it also captioned a printed form of acceptance which required dating and signature by Mountbatten as Governor-General. It would have presented no great difficulties to arrange for Mahajan to carry back to Jammu with him on 27 October such a form, to be pre-dated 26 October, with the Governor-General's acceptance already signed and dated 27 October, for the Maharaja to sign at a moment convenient to him." (Pages 136 and 137).
In his recent interview with Amera Saeed, appeared in esteemed English Daily (MUSLIM) of Islamabad, on Friday, November 27, 1992, he further highlighted the truth of bogus and fraudulent Instrument of Accession. Relevant portion is: "The problem we have got now is that somebody is lying through his teeth, because here we have a whole set of documents which are dated the 26th (of October 1947) and accepted by Mountbatten on the 27th, and which can't possibly have been signed on the 27th. And then when we look at the documents and we wonder that they are, anyway. Because, what was produced was a printed document relating to accession during the British period. It can't possibly be the document that Mountbatten's people are talking about, because Mountbatten, in the discussions, of which we have several records of the accounts on the 26th, when he says we must have this accession, says 'Let an instrument of accession be drafted'.'
"Now this is standard form, printed for August, with August crossed out, and October put in, which can't possibly be what they are talking about. So I think - and this is the most important discovery I have made - that there was no document at all. I was in the India Officer Library a month ago, and I met a Professor Husnain , who has been an archivist of the Jammu and Kashmir State, and he says that they have been looking for the past forty-three years to find the original Instrument of Accession and never found it! There isn't one!'When you come to think of its, having got the Indian troops in, why sign?"
77. We may also add the list of events leading to fraudulent accession manoeuvred by India, by reference to utterance from the horses mouth. Mohan Krishen Teng, a Hindu author, in his book "KASHMIR ARTICLE 370", reasted the political events, points of difference between the Kashmir leadership and Indian rulers, .He pressure built on Kashmir leadership and its ultimate succumbing to pressures. This evidence fully corroborates the analysis of Professor Alastair Lamb. We may liberally quote the relevant excerpts as: "Hari Singh did not commit himself to accept any future Constitution of India. However, he reserved the right to enter into agreements with the Government of India under any future Constitution of India. The instrument of accession did not effect the continuance of the sovereignty of the Ruler in and over the State or the validity of any law in force in the State, save as provided by or under the Instrument of Accession." (Page 45)
"The Conference leaders insisted that the obligations undertaken by the Maharaja by virtue of the Instrument of Accession were subject to theor approval. Therefore, they did not accept the accession of the State, as it was envisaged by the State Department or the Maharaja. In fact, they visualised the accession of the State as an administrative arrangement which was arrived at between them and the Government of India, not between the Maharaja and the Government of India.
The Conference leaders, had before the partition of India, committed themselves to united India, which they had presumed would be based upon reorganisation of the British India and the Indian States into autonomous political identities, mainly based upon the reconciliation of communal balances. The partition had, however, destroyed the basis of Indian unity the Conference leaders had visualised and liberated the two Dominions from the constraints any communal balances imposed upon them. The Constituent Assembly of India had opted for a Union of India based on the secular integration of the people of India rather than the recognition of communal balances and federal autonomy. In broad terms, the Conference leaders took the position which underlined:
(i) the Jammu and Kashmir State was a Muslim majority State and in order to protect Muslim identity, it could not be brought within the political organisation of India, which is dominantly Hindu;
(ii) the existing arrangements between the Maharaja and the Government of India could not form the basis of the constitutional organisation of the State or determine the future of the State's constitutional relations with the Dominion of India:
(iii) the future Constitution of the State and the constitutional relations between the State and the future federal organisation of India would be determined by fresh agreements between the Interim Government and the Government of India;
(iv) the stipulation of the Instrument of Accession would be treated as redundant to the extent such stipulations brought the State within the jurisdiction of the Dominion of India.
The National Conference leaders pledged their support to the accession of the State, but they refused to accept the secular integration of the State in the federal organisation of India. That claimed that the Jammu and Kashmir State was a Muslim majority State and as such it could be placed in the Indian political organisation only on the basis of communal balances, as a separate and autonomous political entity, which did not form a part of the constitutional organisation of India." (Pages 47 and 48)
"While the Indian leaders were trying frantically to find a solution of the problems in the State, and remove the Maharaja, Sheikh Muhammad Abdullah threw a bombshell in their midst. In a press statement, he gave to an influential English newspaper "Scotsman" he pleaded for the independence of the State. "Accession on either side cannot bring peace", Abdullah stated. "We want to live in friendship with both Dominions. Perhaps a middle path between them, with economic cooperation with each, will be only way of doing it. But an independent Kashmir must be guaranteed not only by India and Pakistan, but also by Britain, the United States and other members of the United Nations". Sheikh Muhammad Abdullah added further, "During the communal riots in the Punjab after partition, we tried in our humble way to stem the wave of fanaticism. That is why I urged we should wait before deciding our affiliation. I pleaded with both Dominions to help us first to win internal emancipation before asking us to choose! India replied by refusing to make a standstill agreement with the Maharaja; Pakistan did not do so. When during the crisis India accepted the Maharaja's accession, Pandit Nehru insisted that it was only provisional and that people must decide later"." (Pages 51 and 52).
78. The aforesaid events fully coincide, without reservations, that any attempt at regional integration of any part of the State would not only negate the principle of right of self- determination promised to the people of Kashmir at the forum of the United Nations, rather it shell be suicidal to the Cause as a whole. The tremendous sacrifices of Kashmiris may go waste. A sane approach to the proposition, therefore, would be to desist from integrating the Northern areas to any Province of Pakistan, unless the future of the State, as a whole, is settled in exercise of right of self-determination as promised.
We may add another reason in support of our contention by reference to the provisions of Pakistan Constitution. In consistent with the policy, the framers of the Constitution of the Islamic Republic of Pakistan in 1956,1962 and 1973, made ah express provision in the Constitutions in respect of the State of Jammu and Kashmir. Article 257 of the present Constitution of Pakistan postulated: "When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State." , These provisions are consistent with the policy of Pakistan in relation to the Kashmir State. It is clearly postulated that the State of Jammu and Kashmir, as such, is a single entity. Its future is yet to be determined in the light of the terms and conditions of the act of accession. An open scope of Terms and conditions of accession has been deliberately preserved by the framers of the Constitution. Therefore, any approach of regional integration of any part of the State is likely to demolish the whole edifice of the Cause of Kashmir, undertaken and advocated by Pakistan.
79. It will not be out of context to state that immediately after liberation, the local people of the Northern areas offered accession of the Northern areas to Pakistan. The proposal was not accepted by the Government of Pakistan as it was likely to lead towards a division of the State.
Professor Josef Korbel, in his book "DANGER IN KASHMIR", at page 92, referred to that aspect of the proposition and explained that the people of Gilgit area seized the Maharaja's agent and through a blood-less revolution, established their own local government, which immediately acceded to Pakistan. The Karachi Government, however, cautiously, refrained from accepting the act of accession, possibly because it feared that such acceptance might imply their approval to a division of the State. As a rule of caution, therefore, it is least advisable to integrate any part of the State in an irrational fashion, as such act may imply acceptance of the present Line of Control as the international border between India and Pakistan.
80. Next, we proceed to resolve another key-point, controverted between the parties. It is the point of jurisdiction of this Court. It may be mentioned that respondent No.1, prior to filing its written statement, moved an application containing the objection of jurisdiction. It was prayed that before adverting to the merits of the case, the question of jurisdiction of the Court may be resolved first.
The application was turned down, as, in view of this Court, such an objection could be raised in the written statement, alongwith other controverted points. In its written statement, respondent No.1 reiterated its objection relating to jurisdiction. Mr. Mumtaz Ali Mirza, the learned Counsel for the Government of Pakistan, emphasised that in view of the provisions of the Interim Constitution Act, the jurisdiction of this Court confined to the liberated territories of the State under the administrative control of the Government and not beyond that. In such situation, it was emphasised that this Court could not lay its hands on the merits of the controversy raked in the petition. The substance of the objection confined to territorial jurisdiction. Thus, chi making a comparative study of Article 226 of the Indian Constitution and Article 192 of the Pakistan Constitution, it was suggested that the proposition pertaining to Northern Areas being beyond the territorial jurisdiction Of this Court, may not be resolved. Reference was made to:
1. P.L.D. 1965 S.C. 201;
2. P.L.D. 1981 Peshawar 57; _ 3. P.L.D. 1956 S.C. (India) 291;
4. A.I.R, 1954 S.C. 207; and
5. A.I.R, 1953 S.C. 210.
81. The word "jurisdiction" ordinarily signifies power and authority; The term "Court's jurisdiction" refers to power and authority erf Court to decide issues among citizens or between citizens and State, in exercise of its judicial functions, including its verdict. The limitations on Court's jurisdiction confine to:
(i) the subject-matter;
(ii) territorial extent;
(iii) pecuniary value of the claim involved;
(iv) Nature of the dispute; and
(v) amenability of the .Parties to the process of the Court.
82. In present case, objection to jurisdiction of the Court confines to:
(i) territorial limits; and
(ii) amenability of the Pakistan Government to the process of this Court.
The objection is to be settled in the light of the definition of the term "Azad Jammu and Kashmir" as defined in Section 2 of the Interim Constitution Act, 1974. We propose to deal with the first limb of the objection relating to territorial extent of jurisdiction. As the question of jurisdiction is to be resolved by construing the provisions of the Constitution, we deem it expedient to have an appraisal of the rules of interpretation of the Constitution.
83. The orthodox view of interpretation of Constitution is that the provisions of Constitution may be construed strictly by adhering to Ordinary grammatic meanings of words and phrases used therein. The counter view, rather the modern view, however, is otherwise. The second view pleads that Constitutional provisions may be construed liberally, but within the limits of its scheme, objectives, and purposes desired to be attained. Further emphasis is made on keeping in sight the structure of body politic.
84. Mr. A.K. Brohi, a celebrated jurist, in his "Fundamental Law of Pakistan" analysed the proposition of interpretation of Constitution as: "... There are two rival concepts that will contend for mastery in the interpretation of constitutional instrument in our country. These may be called the American theory of progressive interpretation and the British or the Commonwealth theory which insists upon, a literal interpretation of constitutional instruments, that is the theory that says that intention of the Legislature is to be gathered from the words used. The rules adopted for the interpretation of Colonial and preindependence Indian Constitutional Legislation are the same as those accepted for the interpretation of the statutes in England...
Having stated the fundamental view-point which their Lordships of the Privy Council have often approached the questions concerning the construction of Colonial and Dominion Constitution Acts, we are now in a position to appreciate the somewhat distinguishable attitude which has been adopted by the United States Supreme Court to the problem of interpreting the Articles of the United States Constitution. - We would call the American view-point as yielding place to "progressive interpretation" - as opposed to the English "Literal" or "grammatical" interpretation of constitutional instruments."
85. In support of the modern view of interpretation of Constitution, known as the liberal view, reference is made to Corpus Juris Secundum, volume I6, edition 1984, note 18, at page 64, as: "In construing a constitution, its essential character must always be kept in mind, and a constitution should be construed with reference to. And in the light of. Well-organized and fundamental principles underlying all constitutions. It is to be regarded as fundamental law to which all other laws must yield, and should be interpreted in such a manner as to carry out the broad general principles stated therein. Although the meaning or principles of a constitution remain fixed and unchanged from the time of its adoption, a constitution must be construed as if intended to stand for a great length of time. A constitution is a living document which is progressive arid not static.
As a general rule, a constitutional provision should be broadly and liberally construed and therefore, should not receive too narrow or literal an interpretation, rather, the meaning given to a constitutional provision should be applied in such a manner as to meet new or changed conditions as they arise without departing from the basic principles contained in the constitution. Accordingly, expediency has no application in interpreting constitutions, nor does public clamor, majority, desire, or apparent need. In any event, exceptions to general constitution provisions must be narrowly and strictly construed.
86. The construction of statutes as analysed by Crawford at note No.165, page 258, suggests as: "165. Statutes as a Whole.-- Inasmuch as the language of a statute constitutes the depository or reservoir of the legislative intent, in order to ascertain or discover that intent the statute must be considered as a whole, just as it is necessary to consider a sentence in its entirety in order to grasp its true meaning. Consequently, effect and meaning must be given to every part of the statute which is being subjected to the process of construction- to every section, sentence, clause, phrase and word.
Moreover a statute should be construed as a whole because it is not to be presumed that the legislature has used any useless words, and because it is a dangerous practice to base the construction upon only a part of it, since (me portion may be qualified by other portions. In addition to being subject fo qualification, words are not always used accurately by the legislature. The thought conveyed by the statute in its entirety may reveal the inaccurate use.
Hence, the court should, when it seeks the legislative intent, construe all of the constituent parts of the statute together, and seek to ascertain the legislative intention from the Whole act, considering every provision thereof in the light of the general purpose and object of the act itself, and endeavouring to make every part effective, harmonious, and sensible."
87. In British Coal Corporation's case, A.I.R. 1935 Privy Council 158, Lord Chancellor Viscount Sankey, who delivered the verdict of the Court, observed: "Indeed, in interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted."
In D. Parraju's case, A.IJR. 1952 Calcutta 610, while relying on the aforesaid view of the Privy Council.
Mr. Justice Dma construed the provisions of the Constitution, with the emphasis: "Being a provision contained in written Constitution, the Article must receive a construction which is most beneficial to the widest possible amplitude of its powers."
88. The Supreme Court of Pakistan invariably deliberated over the proposition of interpretation of Constitution and laid down its dictum in uniform manner. Reference may be made to Fazal-ul- Qadir Chaudhry's case, P.L.D. 1963 S.C. 486.
The proposition once again received attention of the Court in Saeed Ahmad Khan's case P.L.D. 1974 S.C.
151. Leading principles of interpretation of Constitution were enunciated as:
(i) The Constitution is a fundamental or organic or Supreme law standing on a somewhat higher position than the other laws of the country,
(ii) The Constitution is.-the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere;
(iii) The Courts are creatures of the Constitution; they derive their powers and jurisdiction from the Constitution and must confine themselves within the limits set by the Constitution;
(iv) Under a Constitution prescribing a system where there is a trichotomy of soverign powers the judicial power must from the very nature- of things be vested in the judiciary;
(v) Thus the judiciary does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction;
(vi) In the latter case an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that provisions seeking to oust the jurisdiction of superior Courts, even by a constitutional provision, are to be construed strictly with a pronounced leaning against ouster;
(vii) It is not, however, the function of the judiciary to legislate or to question the wisdom of the law- giver if the law has been competently made without transgressing the limitations of the Constitution. If a law has been competently made the judiciary cannot refuse to enforce it even if the result be to nullify its own decisions;
(viii) The law-giver has also every right to change, amend or clarify the law if the judiciary has found that the language used conveys an intent different from that which was sought to be conveyed by the law-giver;
(ix) The Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution;
(x) As far as possible each provision of the Constitution' should be construed so as to harmonize with all the others." ,
89. The Supreme Court of Azad Jammu and Kashmir analysed the proposition of interpretation of Constitution in Kashmir Timber Corporation's case, P.L.D. 1978 S.C. (AJ&K) 42 as: "From the authorities the following principles of interpretation "of statutes emerge:-
(i) that a Constitutional instrument should be read as a whole and its provisions construed harmoniously;
(ii) that the Courts, as far as possible, should lean in favour of saving rather than destroying the provisions of a Constitution;
(in) that the empowering provisions of an enactment should be liberally construed; and
(iv) that if a term or expression used in an enactment has various constructions, those should be accepted which accord with the context."
In Sardar Muhammad Abdul Qayyum Khan's case, P.LJ. 1983 S.C. (AJ&K) 140, it was observed: "While interpreting provisions of Constitution, every part and every word to be given effect to and construction rendering any provision meaningless or inoperative to be avoided."
It was further held: "Court to be duty bound to have recourse to whole instrument, if necessary, to ascertain true intent and" meaning of any particular provision."
90. In Jammu and Kashmir Tehrik Ammal Party's case, P.L.D. 1985 AJ&K 95, this Court, among others, also examined the proposition of interpretation of Constitution as: - Construction - Meaning and intention of legislature should be ascertained from language of Statute itself and words used in Statute or Constitution should be construed in their ordinary dictionary meaning, if no ambiguity arises in doing so - Provisions of Constitution should not be interpreted in a narrow and padestal sense but in a broad and liberal spirit which does not mean that Court should be free to stretch or pervert language of an enactment in interest of any legal or Constitutional theory."
In Nisar Ahmad's case, P.L.J. 1982 S.C. (AJ&K) 191, the intention of the framers of the statute was Construed by resort to its preamble. It was observed: "Preamble to be part of Act, meant to explain its purpose and in fact to provide key-note to the Act fixing intention of law-makers and also goal to be achieved by Legislature." ,
91. The aforesaid authorities lead to the conclusion that Constitutional provisions may be construed: '
(i) broadly and liberally, as Constitution is a living document. It is progressive and not static;
(ii) it should not receive too narrow or literal interpretation; rather, it should be construed in such manner as to meet new or changed conditions as they arise, but without departing from the basic principles;
(iii) the intent of the framers of the Constitution or statute is to be construed by considering whole of the Constitution, by assigning meaning to its every part;-
(iv) the provisions may be construed to save, rather destroy, the scheme of the Constitution;
(v) when more than one meaning may be construable, such significance may be given to the provisions which are most close to the scheme and structure of the Constitution;
(vi) Constitution or statutes may be construed to maintain its harmony, and
(vii) Preamble of the Constitution may be helpful to construe the scope of objectives and intent of its framers.
92. In the light of the grounds norms applicable to interpretation and construction of Constitution, as listed above, next, we advert to the scheme, objectives and character of the Azad Jammu and Kashmir Interim Constitution Act, 19^4. It is undenied that the structure, position and status of Azad Jammu and Kashmir is unique among the comity of Governments and States in the world. Likewise, the scheme, structure and position of its Constitution is equally unique. This is so as the political status, as it emerged on constitution of the modem State in 1846; its status at the time of independence in 1947; the emergence of dispute pertaining to its accession; the dispute over its future status being still on the agenda of the Security Council; passing of various resolutions by the Security Council and the United Nations Commission for India and Pakistan, divided defence control on one part of it under India and the other part under Pakistan, presence of two Governments, one in the Indian controlled area and the other in the liberated area, are unparallel to any other State in the world in 20th century.
93. Another noticeable characteristic feature of the Constitution Act pertains to the sytle and character of the Government. Under Section 2, the term "Government" has been defined as 'the Azad Government of the State of Jammu and Kashmir'. In order to give true meaning to its definition, the scheme of Constitution envisaged various institutions, including:
(i) the President;
(ii) the Prime Minister (with Council of Ministers;
(iii) the Legislature;
(iv) the Council;
(v) the Supreme Court and the High Court;
(vi) the Chief Election Commissioner;
(vii) the Auditor General; and
(viii) the Council of Islamic Ideology.
It has its own national flag and national anthem. The Azad Government has a dual character as its fabric is blended with federal and unitary form of Government.
94. In consequence of the upsurge of the masses against the oppressor ruler and liberation of large areas, it was resolved to form a Provisional government, with the claim of Government of whole of the State. The Provisional Government was announced on October 24, 1947, with its capital seat at Pallandari in Poonch. The declaration issued by the Provisional Government on its emergence contained the back-ground of the liberation movement, liberation of part of the State and the objectives in view, for formation of the Provisional Government. The declaration being of vital importance, is reproduced: " The Provisional Azad Government, which the people of Jammu and Kashmir have set up a few weeks ago with the object of ending intolerable Dogra tyrannies and securing to the people of the State, including Muslims, Hindus and Sikhs, the right of free self- Government has now established its rule over a major portion of the State territory and hopes to liberate the remaining pockets of Dogra rule very soon. In view of these circumstances it has been reconstituted with Mr. Ibrahim, Bar-at-Law of Poonch as its provisional head, and its headquarters have been moved to Plandari in Poonch.
The new Government represents the united will of the Jammu and Kashmir State to be free from the rule of the Dogra dynasty which has long suppressed and oppressed the people.
The movement of liberty which has culminated in the formation of the present Provisional Government has a long history dating from 1929. Thousands of Jammu and Kashmir, people, including members of all communities, have suffered death and imprisonment in the cause of this movement. One of its forms was the Quit Kashmir Movement launched in the Kashmir valley last year.
It will be recalled that Pandit Jawaharlal Nehru as a friend of the suffering people of Indian States went to help this movement at the time but was not allowed to enter the State territory under the orders of the ex-Kuler Hari Singh. The tyrannies perpetrated by the Raja and his officials and his troops on the people increased with the increase in the desire of the people for freedom and Self- Government.
Recently a prominent .Hindu patriot, who wanted to proceed to Karachi and New Delhi to represent the intolerable conditions in the State to our neighbouring Dominions of Pakistan and India was arrested by the ex-Ruler's officials.
The united will of the people has, however, overcome the organised violence of the Ruler's armies.
He and his so called Prime Minister have fled from Kashmir and will perhaps soon flee from Jammu as well.
The Provisional Government, which is assuming the administration of the State is most emphatically not a communal Government. It will include Muslims as well as non-Muslims in the provisional Cabinet which will serve the people, the temporary purpose of restoring law and order in the State and enable the people to elect by their free vote a popular legislature and a popular Government.
The Provisional Government entertain sentiments of the utmost friendliness and goodwill towards the neighbouring Dominions of India and Pakistan and hopes that both the Dominions will sympathise with the people of Jammu and Kashmir in their efforts to exercise their birthright of political freedom. The Provisional Government is further anxious to safeguard the identity of Jammu and Kashmir as political entity.
The question of accession of Jammu and Kashmir to either Dominion can only be decided by the free vote of the people in the form of a referendum. The Provisional Government will make prompt arrangements for this and hopes to invite independent observers to see that the question is decided by the free will of the people."
It is evident from the Declaration recapitulated above that the character of the Azad Government was provisional till the liberation of whole of the State. It is represented by the united will of the people of Jammu and Kashmir to attain freedom from the Dogra dynasty. The united will represented all communities residing in the State. An undertaking was also given that the Provisional Government shall safeguard the identity of Jammu and Kashmir as political entity and that the question of accession of the State to either Dominion was to be decided by the free vote of the people in the form of free plebiscite.
95. As the war of liberation was in progress, no Constitution was framed immediately after the formation of the Provisional Government and the administration was run with the help of Rules of Business. The first Rules of Business were framed in 1948. These were supplemented in 1950. With the understanding that the future of the State was to be determined in a free plebiscite as guaranteed by the resolutions of the Security Council and the United Nations Commission for India and Pakistan, need was felt to give democratic shape to the Government and its institutions. As time passed on, it was realised that the Government will be given a democratic character. Thus, in 1960, limited franchise was introduced in the shape of Azad Jammu and Kashmir Basic Democracies Act, 1960. The President was elected by the electoral college comprising the Basic Democrats directly elected in Azad Kashmir and from refugees of the State settled in Pakistan. A Council representing the natives of Azad Kashmir and refugees settled in Pakistan was also constituted of elected representatives. As the desired purpose was not served, it was demanded that the national institutions may be given a true representative cover by introduction of the system of adult suffrage. The demand was accepted. The Azad Jammu and Kashmir Government Act, 1970 was promulgated. By virtue of the provisions of the Act, the President of Azad Jammu and Kashmir was elected by the electorates directly. A legislative Assembly was also formed by its directed elected members.
96. In 1974, it was deemed expedient to introduce parliamentary form of Government, to harmonise it with the system prevailing in Pakistan. The Act of 1970 was modified and re-enacted in the shape of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
97. Before independence, there was a High Court of Judicature in the State, established in 1995- Bikrami. On liberation of part of State territories and formation of the Provisional Government, High Court was immediately established under the provisions of the Azad Jammu and Kashmir Courts and Laws Code Act, 1948. It exercised jurisdiction as conferred under the aforesaid Act. On enforcement of the Act 1970 and thereafter the Interim Constitution Act, 1974, the High Court already established was given full protection. The writ jurisdiction was conferred bn the High Court in 1972.
98. In the Interim Constitution Act, the relevant provisions relating to the High Court are contained in Section 43. Section 43(1) postulates that there shall be a High Court for Azad Jammu and Kashmir which shall consist of a Chief Justice and such number of other Judges as may be prescribed by ah Act of the Assembly. Sub-section (2) provided that the person holding office as Chief Justice of other Judge of the High Court immediately before the commencement of this Act, shall be deemed to be the Chief Justice or the other Judge, as the case may be, appointed under this Act.
99. Jurisdiction of the High Court was provided under Section 44. The point under consideration being relevant to the jurisdiction of the Court, it is deemed expedient to reproduce these provisions as under:- "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-
(i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from do*ng that which 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 he 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) 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.
(3) ... ...
(4) ... ...
(5) In this section, unless the context otherwise requires, 'Person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any court or tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services."
The jurisdiction has been conferred on the High Court by the Interim Constitution Act in addition to other laws. Here, we propose to confine our deliberation to the scope of jurisdiction contemplated under the Interim Constitution Act.
100. Under sub-section (2)(a)(i), the High Court is empowered to make an order 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 is not permitted by law to do or to do that which he is required by law to do. The direction issued under clause (a)(i) is to confine to performance of functions by a person in connection with the affairs of Azad Jammu and Kashmir or a local authority. Under clause (a) (ii), authority is conferred on the High Court to declare 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. It is pertinent to note the distinction in both spheres of exercise of jurisdiction described under clauses (a)
(i) and (ii). In the first case, directions or orders are to be made in connection with the affairs of Azad Jammu and Kashmir whereas under the second clause, authority has been conferred to make an order declaring an act or proceeding as unlawful, performed in connection with the affairs of the State.
101. Under clause (b)(ii), the High Court is empowered to make an order requiring a person holding a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold such office. Clause (c) further empowered the Court to make an order or give direction to the person or authority, including the Council and the Government, exercising power or performing functions in relation, to Azad Jammu and Kashmir, for the enforcement of fundamental rights postulated by the Act.
102. The term "Person" used in the aforesaid provision has been defined in Section 2 of the Act as: " 'Person' includes any body politic or corporate." It has been redefined in sub-section (5) of Section 44 as: " Person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the Supreme Court, the High Court or a Court or Tribunal established under a law relating to the Defence Services."
103. Mr. Mufntaz Ali Mirza, the learned Deputy Attorney General, invited, our attention to the definition of the term "Azad Jammu and Kashmir" as defined in Section 2 of the. Act and argued that the territorial extent of jurisdiction of this Court confines to the liberated territories, under the administration of the Government, excluding the Northern Areas. In view of the nature of the objection, it will be particularly relevant to resolve the proposition at this level. The term "Azad Jammu and Kashmir" has been defined under section 2 of the Act as: " 'Azad Jammu and Kashmir means the territories of the State of Jammu and Kashmir which have been liberated by the people of that State and are for the time being under the administration of Government and such other territories as may hereafter come under its administration.
It is evident that the term "Azad Jammu and Kashmir" pertains to the territories of the State which have been liberated by the people of the State and are for the time being under the administration of the Government. It also includes the territories which may come under its administration. In order to satisfy that a particular area or territory of the State formed part of Azad Jammu and Kashmir, it was imperative to establish:
(i) that such territory or area of the State was liberated by the people of the State; and
(ii) that such area was under the administration of the Government.
104. In order to satisfy the first condition, it is already held elsewhere that the Northern Areas are part of Jammu and Kashmir State. These areas were liberated alongwith other areas of the State, in 1947. At this stage, we have to satisfy that these areas were equally liberated by the people of the State. The point of liberation erf the Northern Areas is a question of fact.. This question of fact is to be established by positive proof available on record. Hie petitioners, in support of their claim, made reference to the questioned Agreement of April 28, 1949, whereby administrative control of the areas was handed over by the Azad Government, with the approval of the President of All Jammu and Kashmir Muslim Conference, to the Government of Pakistan, and the Sino-Pakistan Border Treaty executed on March 2,1963. We have reproduced the Sino-Pakistan Treaty elsewhere and observed that the Northern Areas were part of Jammu and Kashmir State. At this stage, we have to satisfy the other angle of the proposition and that is, that these areas were liberated by the people of the State. In support of this part of the proposition, we may refer to:
(i) "Kashmir Saga" by Sardar Muhammad Ibrahim Khan, Founder President of the State of Jammu and Kashmir.
At page 11 of the book, it is disclosed: "" A question now has been raised in the Pakistan press and in the political circles that Northern Provinces of the State, namely, Gilgit, Ladakh and Baltistan be either annexed to Azad Jammu and Kashmir State or to Pakistan. The question of a part of the State acceding to Pakistan does not seem feasible, and if it is done, it is going to affect very badly Pakistan's cause in United Nations. In my opinion these Northern Provinces of Jammu and Kashmir State should go to Azad Jammu and Kashmir 1 cause they are a part of Kashmir State and have been so through ages. These areas should be governed by the ap,. Inactnebt of a Governor and the legal jurisdiction of the Supreme Court and the High Court should extend to these areas so that the people of this area also benefit from an organised judicial system. It is a question which yet has to be debated and decided. Only a very has to be debated and. Only a very strong Central Government of . Pakistan can be in a position to solve this matter one. Way or the other. In the meantime the area is governed by Military and Civil administration with wide autocratic powers. This position jeopardizes the peoples'- rights in this area. It must be said that a lot of credit is due to its people and their ancestors who fought for freedom, along with the rest of Kashmiris in 1947...."
It further enumerates the events, at pages 50,73 and 76: " The revolution, which started in Western Kashmir, Gilgit and Ladakh, and eventually spread throughout, would not have been ignited so rapidly, except for the brutal treatment which Dogra soldiers meted out to the people." (Page 50)
" The area of operation was mainly divided into two large sectors, Muzaffarabad to Bhimber, and Bhimber to Jammu. Gilgit was left out, because the Gilgit organisation was separate. The Dogra Army Muslim Officers, raising a local rebellion, had established an administration of their own. This was effectively arranged with officers who were posted in Gilgit bv the Dogra Government. Each sector was given a separate quota of rifles for operation and placed under an Army Leader.
Similarly, different leaders were put in charge of different sectors to provide the necessary political link. Before the whole scheme could operate in an organised and effective manner, we needed an army to fight an army. That mere armed crowds could not possibly achieve much was realised in the very beginning. It seemed, therefore, that the sine qua non of the whole plan was that a people's army be organised." (Page 73)
"Inspite of all this, since October 27, 1947, the 'Azad Army' (name given to the People's Army of liberation) was able to conquer from the Indian Army practically the whole of Poonch, with the exception of the city of Poonch. The whole of Rajouri and Mirpur districts, right down to Akhnoor, were captured by us, while the enemy held Nowshera, peace-time army strong-hold throughout.
On the Muzaffarabad front we went right upto Srinagar and then had to retreat to Chikothi, which position we hold ever since. We went right upto Sopore, conquering the whole of Hindwara Tehsil.
On the Gilgit front the whole of Gilgit was conquered, and also the whole of Ladakh right down to the position thirty miles from Srinagar. The army which operated in Ladakh under most difficult conditions of snow, without any line of communication, must be given the greatest credit. For regular soldiers this would seem an impossibility but during the Azad Kashmir Movement miracles were performed by our soldiers. Whether history will ever give this movement the credit it deserves is a separate matter. Of course, to expect any reward from any human agency for what the people did would be a great fallacy." (Page 76).
(ii) "Danger in Kashmir" by Josef Korbel (Pages 5,6 and 92).
"The term "Kashmir", as is generally used, is actually not accurate. It applies to one part of the entire territory, the official name of which is the State of Jammu and Kashmir. The State consists of several regions. Its heart is the famous Value of Kashmir. South of it is the Jammu Province, to the east is Ladakh, and north of it, Baltistan; farther north are the regions of Hunza and Nagir, and west of them, the Gilgit Agency, composed of several political districts. West of the Value are the districts of Muzaffarabad, Riasi, Poonch and Mirpur.
Kashmir's irregular borders, many miles of which are as yet not internationally determined, touch a number of States. Beginning at its most northwesterly point, Kashmir borders upon Sinkiang, the line running south and east for some 400 miles; then for about 450 miles it finds itself neighbour to Tibet. Between India to the south and Kashmir to the north, the border continues for some 350 miles, then joins the boundary of Pakistan and turning northwest for about 700 miles finds Afghanistan. Here the border swings east for about 160 miles, where it ends in a somewhat unclear situation- on some maps it joins the Soviet Union for about 20 miles, while on the others (including some Russians maps) it ends at a common point with the borders of both Sinkiang and Russia."
(Pages 5 & 6).
" Only one region - Gilgit - was not affected by the violent struggle. Here the people seized the Maharaja's agent and through a bloodless revolution established their own local government, which immediately acceded to Pakistan. The Karachi government, however, cautiously refrained from accepting the act of accession, possibly because it feared that such acceptance might imply their approval of a division of the state." (Page 92).
105. At page 273 of the paper prepared by the Government of Pakistan on Kashmir Question in the United Nations, die description of die area north of the cease-fire line, contains a brief account of the liberation movement as: On 28th October, 1947, the Gilgit Scouts, assisted by the Muslim element of the State army, staged a successful bloodless coup dated, and the military Governor and the non-Muslim elements of the State army and Civil Administration were disarmed and arrested. The treasury, and large quantities of arms, ammunition, equipment, clothing and supplies were captured.
The Muslim element of the State Army, (approx. 400 strong) started raising more volunteers for the Azad Army, and equipped them with weapons they had seized from the non-Muslim elements. This Azad Army set up its headquarters in Astor (Gilgit Wazarat), and towards the middle of January 1948, sent out a strong column to Baltistan.
All the local Rajas of Baltistan (who are all Muslims) denounced the Maharaja's rule and pledged their allegiance; to Azad Kashmir.
Civil administration was set up in the area upto, but excluding Kargil. Volunteers were recruited and organised into battalions."
It is already analysed elsewhere that on relinquishment of the paramountcy of British Crown with respect to Princely States of the sub-continent, including Jammu and Kashmir State, the agency and lease rights of the Brkish-Indian Government in parts of Gilgit also lapsed. The agency and die leased areas were restored to Maharaja. Thus, on assumption of possession of the areas, Governor of Gilgit was Appointed.
Brigadier Ghansara Singh was appointed as Governor on July 20,1947. In his memoirs, Brigadier Ghansara Singh gave a brief account of liberation of the area. It was disclosed that "Ghansara Singh reached Gift on July 30, 1947 and took over as Governor of Gilgit and its Agency. On 3rd and 4th, 1947, revolution started at Yasut. The political agent,- It Colonel Becoa was imprisoned. On the night between October 31 and November l^tt 2 a.m., about a hundred Gilgit Scouts, led by Major Brawn, It. Haider Khan and Subedar-Major Babar Khan surrounded his house and announced his house-arrest. Captain Ehsan Ali, Captain Hussain, Captain Saeed, It. Haider, Subedar-Major Babar Khan and Wazir Walayet Ali formed a provisional Government, headed by Subedar Raees Khan. On November 3,1947, flag-hoisting ceremony took place at Gilgit in Scouts Lines where all civil officers of the State (Jammu and Kashmir) saluted the Pakistan flag. On Novenber 3. The charge of Gilgit was handed over to the provisional Government. Brigadier Ghansara Singh was removed from Gilgit to Pakistan and was released bn January 15,1949 at Suchotgarh. In para 117 of his memoirs, he listed the main causes of fall of Gilgit Agea^As one of the causes, he described that Mirs of Hunza and Nagar, who were State guests in Srinagar before return to Gilgit, had openly told the Chief Minister that they will establish Pakistan in Gilgit if the State opted for India, and that Muslim officers of the State, posted in Gilgit, were very keen to establish Pakistan. They joined hands with the British officers for the purpose.
106. The other relevant authority on the point is Colonel (Rtd) Mirza Hassan Khan, who recorded his own memoirs in the name of "Story of Freedom Movement". In his memories, Colonel Mirza Hassan Khan disclosed the details of the revolution in Gilgit and Northern areas. He recapulated the manner of revolution, its impact and achievements, including the tactics of over-powering and capturing Ghansara Singh, the Governor of Gilgit, to establish a revolutionary Government.
107. We may also quote some relevant excerpts from the speeches made by Sir Muhammad Zafarullah Khan, Foreign Minister of Pakistan, in the Security Council, mi January I6,1948, in its 228th meeting, as listed in the "Documents on Kashmir Problem" by M.S. Deora and R. Grover, Volume I, published in 1991, at pages 177,208 and 217: " We now turn to the State of Kashmir itself. This State was purchased by the great-grandfather of the present Ruler of Kashmir from the Banish East India Company in 1846 for 7,500,000 rupees.
Roughly, this is less than $ 2,500,000.
The population of Kashmir is distributed communally as follows: In Kashmir proper, apart from Jammu, 93.5 per cent are Muslims. Sixty- two per cent of the population of Jammu are Muslims. In the combined Jammu and Kashmir State, 78 per cent are Muslims. The total population is approximately 4,000,000.
Gilgit, which is the high mountain region in the North-west, a part of which borders on the USSR, is entirely Muslim. The total area of the State, which is largely composed of high mountains and barren hills, is 82,0 square miles. The region is famous for its beauty. The people of this State are similarly famous. Their high artistic talents are well known. What is not fully known is the depths of misery to which they have been reduced by a century of unmitigated tyranny and oppression under Dogra rule until it is difficult to say which is the greater tragedy to a Kashmiri: his life or his death. Death often provides release from the unbroken chain of suffering, misery and privation which begins in the cradle and ends only in the grave." (Page 177) "The two Governors-General met at Lahore and had a long discussion on 1 November. The upshot of the discussion was that the Governor- General of Pakistan made the following proposals to the Governor- General of India for the acceptance of the Indian Dominion:
1. To put an immediate stop to fighting, the two Governors-General should be authorised and vested with full powers by both Dominion Governments to issue a proclamation forthwith, giving forty-eight hours' notice to the two opposing forces to cease-fire. The Governor- General of Pakistan has no control over the forces of the Provisional Government of Kashmir or the tribesmen engaged in the fighting, but he will warn them in the clearest terms that if they do not obey the order to cease fire immediately, the forces on both Dominions will make war on them...." (Page 208)
" It is not the so-called raiders, but the people of Kashmir, who are fighting against heavy odds to end Docra tyranny and to prevent Kashmir from falling into the hands of the Indian Dominion.
The Azad Kashmir forces are almost wholly composed of the sons of the soil, and even foreign observers have testified that, wherever they have gone, they have been welcomed as forces of liberation."
We are avoiding, for the purpose of brevity, to quote other sources as, in our estimation, the aforesaid leading authorities provide ample proof in their analysis, to hold that the Northern Areas were liberated by the people of the State.
108. The other condition pertains to the administration of the Government. Reference to the word "Government" in the definition, obviously pertains to the Azad Government. The Azad Government has been defined, as noticed elsewhere, as the Government of the State of Jammu and Kashmir.
Therefore, the area of jurisdiction of the Government spreads throughout the State. Such a definition has been rightly assigned keeping in view the objectives of the Liberation Movement and its ultimate end, as noticed in the first declaration made by it.
109. The word "administration" is quite relevant in this context. Its meaning and scope are, therefore, to be construed in its. Dictionary meaning. In Black's Law Dictionary, the word "administration" has been defined as: "Management or conduct of office or employment; the performance . Of the executive duties of an institution, business or the like. In public law, the administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs or agencies."
The spirit of meaning of the word "administration" extends to performance of executive ' duties of the Government. The executive functions of the Government are, next, to be examined from the provisions of the Constitution itself. Section 19 of the Act envisages the extent of executive authority of the Government. It is reproduced: "19. Extent of executive authority of Government.-
(1) Subject to this Act, the executive authority of the Government shall extend to the matters with respect .To which the Assembly has power to make laws.
(2) The executive authority of the Government shall be so exercised as;-
(a) not to impede or prejudice the responsibilities of the Government of Pakistan in relation to the matters specified in sub-Section (3) of section 31; and
(b) to secure compliance with the laws made by the Council.
(3) Notwithstanding anything contained in this Act, the Government may, with the consent of the Council, entrust, either conditionally or unconditionally, to the Council, or to its officers functions in relation to any matter to which the executive authority of the Government extends."
It is evident that the executive authority of the Government envelops all matters with respect to which the Assembly has power to make laws. It is also assigned the responsibility to ensure compliance with the laws made by the Council. In other words, the executive authority of the Government extends to all subjects in respect of which the Assembly has power to make laws and the Council also makes laws in exercise of its jurisdiction. This, takes us further to the legislative authority of the Assembly.
110. Section 31 of the Act deals with legislative powers of the Assembly and the Council. It provides that both the Council and the Assembly shall have power to make laws:
(a) for the territories of Azad Jammu and Kashmir;
(b) for all State Subjects wherever they may be; and
(c) for all officers of the Council or, as the case may be, the Government wherever they may be.
Under sub-section (2), clause (b), the Assembly has the power to make laws with respect to any matter not enumerated in the Council's Legislative List. Under the provisions of sub-section (1) (b) and sub-section 2(b), the powers of the Assembly to make laws travel beyond the horizons of Azad Jammu and Kashmir. As a matter of fact, the Assembly has been empowered to make laws for all State Subjects, irrespective of their Piece of destination, and all residuary matters which have not been included in the Legislative List of the Council. In other words, the executive authority of the Government extends not only within the limits of Azad Jammu and Kashmir but to all such places and areas where the State Subjects reside, work for their earnings or carry their profession and business.
1U. The term "State Subject" has been defined under Section 2. It 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."
In the Notification, the term "State Subject" has been defined as: THE STATE SUBJECT DEFINITION NOTIFICATION.
DATED. THE 20TH APRIL. 1927.
No. I-L/84.- The following definition of the term "State Subject" has been sanctioned by His Highness the Maharaja Bahadur (vide Private Secretary's letter No. 2354, dated, the 31st January, 1927, to the Revenue Member of Council) and is hereby promulgated for general information: 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 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 I.- In 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 upto date shall be read as if such amended definition existed in this Notification as originally issued."
It is evident from the aforesaid definition of the term "State Subject" that all persons who were born within the State before the reign of Maharaja Gulab Singh and those who settled therein before 1942 and resided permanently, were State Subjects of Class I. Those who settled in the State before the close of 1968- Bikrami and resided permanently, on acquisition of immovable property, enjoyed the status of State Subjects of Class II.- All these who acquired immovable property under a rayatnama or ijazatnama and resided in the State continuously, were placed in Class III as State Subjects. Class IV pertains to registered companies in the State.
112. It is undenied that at present or at the time of promulgation of the Interim Constitution Act, 1974, the Azad Government was not exercising administrative control over the Northern Areas, but the fact remains that the Northern Areas, immediately after liberation, were linked with the rest of the liberated territories. In view of communication difficulties and limited sources, the administrative control was delivered to the Pakistan Government. The Pakistan Government having no legitimate sanction to hold the administration, felt advised to secure such sanction from the legitimate authorities in Azad Kashmir. It appears that, in such situation, it was deemed expedient to execute an agreement between both the Governments to legitimatize the administrative control. Thus, the impugned agreement of April 28, 1949 was secured to rectify the doubtful legitimacy of administrative control. Be that as it may, the fact remains that the natives of the Northern Areas being State Subjects, both the Assembly and the Council were eligible to make laws in respect of them in "exercise of their powers under Section 31 (1) (b) and the executive authority of the Government, as noticed under the provisions of Section 19, equally extended to those areas. Thus, the scheme of law introduced under the Interim Constitution Act covered the administrative jurisdiction of the Government in respect of the Northern Areas. In this view of the matter, the jurisdiction of this Court, as noticed in Section 44 (2) (a) (i), (b) (ii) and (c), squarely extended to the Northern Areas.
113. We have also noticed the provisions under sub-section (2) (a) (ii) of Section 44, whereby jurisdiction has, been conferred on this Court under the Interim Constitution Act, to make order or declaration in respect of any act done or proceedings taken by a person performing the functions in connection with the affairs of the State. The scope of jurisdiction of the Court under this clause, obviously, extends beyond the liberated territories. The framers of the Constitution enhanced the scope of jurisdiction of the Court to the level of entire State, in view of the scheme of the Constitution, the sphere of the liberation movement, the nature of the dispute over the future status of the State and the question being in the archives of the Security Council, settlement of Kashmir refugees in Pakistan and settlement of the State Subjects in Middle East, Europe, America, Far East, Australia etc. These provisions enlarge the scope of jurisdiction of the High Court even at a much higher padestal than the executive authority of the Government and the legislative powers of the Council and the Assembly.
114. We are alive to the sensitive and discreet distinction between the legislative powers of the Assembly and the Council, and the areas of administrative jurisdiction of the Government vis-a-vis the jurisdiction of this Court. We do not propose to establish that jurisdiction of this Court ipso facto follows the legislative areas of administrative control of the Government, but we endeavour to find out the true scope of jurisdiction of this Court as conferred on it under Section 44. It is noticed earlier that the framers of the Constitution conferred jurisdiction on this Court with deliberate purpose and objective, in connection with the affairs of the State as contemplated under clause
(a) (ii). We have also observed the apparent reasons for incorporating the word "State" _ instead*of "Azad Jammu and Kashmir". It is, therefore, deemed expedient to examine the meaning and scope of the term "the State".
115. Unlike the Constitution of the Islamic Republic of Pakistan and the Indian Union Constitution, the word "State" has not been defined under the definition clause of the Act. The only reference to the word "State" made in the Constitution- finds' place in the context of "State Subject" and not otherwise. Nevertheless, we find a reference to the term "State" in the preamble. The preamble of the Act 1974 opens as: " WHEREAS the future status of the State of Jammu and Kashmir is yet to be determined in accordance with the freely expressed will of the people of the State through the democratic method of free and fair plebiscite under the auspices of the United Nations as envisaged in the UNCIP Resolutions adopted from time to time: AND WHEREAS a part of the territories of the State of Jammu and Kashmir already liberated by the people are known for the time being as Azad Jammu and Kashmir; ..."
It is evident from the aforesaid provisions of the preamble that wherever the word "State" occurs in the Constitution, it presupposes reference to the State of Jammu and Kashmir. The other part of the preamble further qualifies that reference to the words "liberated territories of the State of Jammu and Kashmir" included all the territories liberated by the people, which formed part of the State of Jammu and kashmir. The preamble, therefore, provides ample assistance to understand:
(i) as to what is the meaning of the term "the State"; and
(ii) the liberated territories.
In this view of the position, it is safe to hold that the use of the term "the State" in Section 44(1) (a)
(ii) in the context of jurisdiction of the High Court, extends the jurisdiction of the Court to all matters, actions, functions, obligations and exercise of authority, in connection with the affairs of the State.
116. In this context, the preamble further provides guide-line to understand that the Interim Constitution Act was enforced to provide for the better Government' and administration for the interim period, till the settlement of the future status of the State, in respect of the territories of the State already liberated by the people. The language used in the preamble, therefore, referred to the liberated territories, inclusive of the Northern Areas. Unless it was acceded that the Northern Areas were not part of the State of Jammu and Kashmir as it existed on August 15, 1947, it has to be conceded that the liberated parts of the Northern Areas being part of the State of Jammu and Kashmir, were included among the liberated territories. On this premises, the Interim Constitution Act appears to have been framed for all the liberated territories of the State and not for any particular part, to the exclusion of the other. The inference is that the definition assigned to the term "Azad Jammu and Kashmir" with reference to "for the time being under the administration of Government" included the Northern Areas within the frame of Azad Jammu and Kashmir.
117. It is an accepted rule that where a term or phrase is not defined and the intention of the framers of the Constitution or statute was not expressly available, it was permissible to advert to preamble of the Constitution or statute, as the case may be, to find out the intent of the law- makers. In Nisar Ahmad's case, P.L.J. 1982 SC (AJ&K) 191, in order to ascertain the intention of lawmakers, it was deemed expedient to take assistance from the preamble itself, to ascertain such intention.
In present case, as noticed earlier, the term "the State" has not been defined expressly. In such situation, it is considered fair to have recourse to the preamble to find out the intention of the framers of the Interim Constitution for introduction of the terms "the State" and "the liberated territories".
118. The term "the State" has been defined in Article 7 of the Constitution of Pakistan, 1973. It appears in Part II of the Constitution. It is provided that: " In this Part, unless the context otherwise requires, "the State" means the Federal Government, Majlis-e-Shorra (Parliament), a Provincial Government, a Provincial Assembly and such local or other authorities of Pakistan as are by law empowered to impose any tax or cess."
An identical provision has been made in Article 12 of the Constitution of India. The definition of "the State" appears in Part III of that Constitution. It is reproduced: " In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.'
We find a clear distinction in the use of the term "the State" as defined in the aforesaid Constitutions of Pakistan and India, and its use in the Interim Constitution Act, 1974. The reasons of such distinction are quite obvious as the Interim Constitution Act was promulgated as a transitional measure, for only the liberated territories of the State and not for the State as a whole.
This distinction we have drawn to remove confusion which may appear in the mind while appreciating the scope of the meaning of the term "the State", as under consideration in this case.
The purpose of the use of the term "the State", with reference to jurisdiction of this Court under Section 44, shall become further clear when, next, we deal with the scheme of the Constitution and use of the term "Azad Jammu and Kashmir" in the context of other institutions like the Legislative Assembly and the Council.
119. One of the principles of construing the provisions of the Constitution or a statute is to find out the intent of the framers of law, by construing whole of the Constitution or statute, as the case may be, by assigning common meanings to its every part. This was essential to maintain harmony and to save rather than destroy the scheme of the Constitution or the Statute.
120. The term "Azad Jammu and Kashmir" has also been used with reference to the Assembly and the Council as well. First of all, we deal with the case of the Assembly. The word "Assembly" has been defined under Section 2 as: "The Legislative Assembly of Azad Jammu and Kashmir".
Section 22 of the Act envisage that the Legislature of Azad Jammu and Kashmir shall consist of a Legislative Assembly; it shall consist of forty-eight members. The mode of election of these members has been described therein. The provisions are reproduced: "22. Legislative Assembly.- (1) The Legislature of Azad Jammu and Kashmir shall consist of a Legislative Assembly consisting of forty- eight members of whom-
(a) forty shall be elected directly on the basis of adult franchise;
(b) Five, who shall be women, shall be elected by the directly elected members;
(c) one, who shall be from amongst the Ulema-e-Din or Mushaikh and well versed with the teachings of Islam, shall be elected by the directly elected members;
(d) one, who shall be from amongst the Jammu and Kashmir State Subjects residing abroad, shall be elected by the directly elected members; and
(e) One, who shall be from amongst the technocrats and other professionals, shall also be elected by the directly elected members.
(2) The manner of election of the members of the Assembly and the manner of filing casual vacancies shall be such as may be prescribed.
(3) Every Assembly, unless sooner dissolved, shall continue for five years from the date appointed for their first meeting and no longer, and the expiration of the said period of five years shall operate as dissolution of the Assembly.
(4) A-general election to the Assembly shall be held within a period 'of sixty days immediately preced ing the day on which the term of the Assembly is due to expire, unless the Assembly has been sootier dissolved, and the result of the election shall be declared not later than fourteen days before that day."
It is evident from the aforesaid provisions that the Legislative Assembly has been defined as the Legislature of Azad Jammu and Kashmir. In its literal sense, by accepting the contention of the learned Deputy Attorney-General, representing the Government of Pakistan, the representation in the Assembly has to confine to the liberated territories under the effective administrative control of the Government. In other words, literally, the extent of territories under the effective control of the Government may be the five districts (Muzaffarabad, Bagh, Poonch, Kotli and Mirpur). It is undenied that the Assembly represents whole of the State, including liberated territories (excluding Northern Areas). Representation to the Indian-occupied part of the State has been provided through the refugees from the Provinces of Kashmir, Jammu and other areas, settled in Pakistan. Six members are elected from amongst the refugees from Kashmir Province and six from Jammu and other areas, from amongst the refugees, settled in Pakistan. The constitution of the Assembly, prima facie, corresponds to the jurisdiction of this Court, as enunciated elsewhere.
121. It is noticeable that one of the members of the Assembly represents the State Subjects residing abroad, (outside Pakistan) throughout the world. It is undenied that such a member has been elected twice from the State Subjects residing in the United Kingdom. The present Assembly is also represented by a member who resides and carries on business in the United Kingdom.
122. By accepting a narrow and rigid meaning of the term "Azad Jammu and Kashmir", the structure of the Assembly raised at the time of enforcement of the Interim Constitution Act, has to be demolished and number of the members has to be reduced to the liberated territories only.
Therefore, a narrow and rigid definition of the term "Azad Jammu and Kashmir", appears absurd and derogatory to the scheme of the Constitution and constitution and functioning of the Assembly.
123. Another incidental aspect of the proposition finds support from the provisions of Section 24 relating to qualifications of members of the Assembly. It is postulated that a person shall be qualified to be elected as, and to be, a member of the Assembly if- "(a) he is a State Subject;"
The first qualification relating to the status of the candidate for membership of the Assembly (a State Subject) reflects the scheme of the national institutions like the Assembly.
124. Section 21 of the Act deals with the subject of Council. The Council, again, has been defined under Section 2 as: 'The Azad Jammu and Kashmir Council constituted under this Act."
Section 21 (1) postulates that there shall be an Azad Jammu and Kashmir Council. The phraseology used here is exactly the same as the phraseology used in relation to the High Court under Section
43. In that section, it is laid down that "there shall be a High Court for Azad Jammu and Kashmir (hereinafter called the High Court)". There is no distinction between the phraseology use4 v both the cases. The words and the language is perfectly common and identical.
125. It is of interest to note the constitution of the Council. It costs of the Prime Minister of Pakistan, the President, five members from among the Federal Ministers and Members of Parliament, the Prime Minister of A. I Jammu and Kashmir and six elected members of the Assembly. The provision: < Section 21 being relevant to the proposition under consideration, are reproduced: . "22. Azad Jammu and Kashmir Council.- (1) There shall be an Azad Jammu and Kashmir Council consisting of.-
(a) The Prime Minister of Pakistan;
(b) the President:
(c) five members to be nominated by the Prime Minister of Pakistan from time to time from amongst Federal Ministers and members of Parliament;
(d) The Prime Minister of Azad Jammu and Kashmir or a person nominated by him; and
(e) six members to be elected by the Assembly from amongst the State Subjects in accordance with system of proportional representation by means of the single transfer vote.
(2) The Prime Minister of Pakistan shall be the Chairman of the Council.
(3) The President shall be the Vice-Chairman of the Council.
(3-A) The Federal Minister of State for Kashmir Affairs and Northern Affairs shall be an ex-officio member of the Council.
(4) The qualifications and disqualifications for being elected as, and for being, a member of the Council shall, in the case of member referred to in clause (c) of sub-section (1), be the same as those for being elected as, and for being a member of the Assembly.
(4-A) The seat of a member of the Council elected by the Assembly, hereinafter referred to as an elected member, shall become vacant if,-
(a) he resigns his seat by notice in writing under his hand addressed to the Chairman or, in his absence, to the Secretary of the Council;
(b) if he* is . Absent, without the leave of the Chairman, from thirty consecutive sittings of the Council; ,
(c) he fails to make the oath referred to in sub-section (6) within a period of ninety days after the date of his election, unless the Chairman , for good cause shown, extends the period; or ''d) he ceases to be qualified for being a member under any provision of this Act or any other law.
(4-B) If any question arises whether a member has, after his election, become disqualified from being a member of the Council, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election. Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member and his seat shall become vacant.
(4-C) An election to fill a vacancy in the office of an elected member shall be held not later than thirty days from the occurrence I of the vacancy or, ?f the election cannot be held within that period because the Assembly is dissolved, within thirty days of the general election to the Assembly.
(4-D) The manner of election of elected members and filling of a casual vacancy in the office of an elected member shall be such as may be prescribed.
(5) An elected member shall hold office for a term of five years from the day he enters upon his office: Provided that an elected member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
(6) An elected member shall, before entering upon office, make before the Chairman oath in the form set out in the First Schedule.
(7) The executive authority of the Council shall extend to all matters with respect to which the Council has power to make laws and shall be exercised, in the name of the Council, by the Chairman who may act either directly or through the Secretariat of the Council of which a Federal Minister nominated by the Chairman from :amongst the members of the Council and not more than three Advisors appointed by the Chairman shall be incharge: Provided that the Council may direct that, in respect of such matters as it may specify, its authority shall be exercisable by the Vice-Chairman of the Council, subject to such conditions, if any, as the Council may specify.
(8) An Advisor may be appointed from amongst the elected members or the members of the Assembly.
(9) An Advisor shall, before entering upon office, make before the Chairman oath in the form set out in the First Schedule.
(10) No Advisor who is a member of the Assembly and the Federal Minister of the State for Kashmir Affairs and Northern Affairs shall have the right to speak in, and otherwise take part in the proceedings of the Council, but shall not by virtue of this sub-section be entitled to vote.
(11) The Council may make rules for regulating its procedure and the conduct of its business, and shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings of the Council shall not be invalid on the ground that a person who was not entitled to do so sat, voted or otherwise took part in the proceedings.
(12) Orders and other instruments made and executed in the name of the Council shall be authenticated in such manner as may be specified in rules to be made by the Council and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order of instrument made or executed by the Council.
(13) The Chairman may regulate the allocation and transaction of the business of the Council and may, for the convenient transaction of that business delegate any of its functions to officers and authorities subordinate to it.
Explanation: In this section, 'Chairman' means Chairman of the Council.
(14) The words 'The Prime Minister of Pakistan' wherever occurring in this section shall be deemed to include the person for the time being exercising the powers and performing the functions of the Chief Executive of Pakistan."
The aforesaid provisions reflect the manner of constitution of the Council, the status and qualifications of the members and administrative functions assigned to the Council, its Chairman, the Secretariat, the Advisors and the Minister incharge of the Secretariat of the Council. The membership of the Council has not been confined only to the elected members of the Assembly or the State Subjects qualified to be elected as members of the Assembly. It travels beyond the territorial limits of the State and entrusts executive authority to non-State Subjects. The executive authority performed by the Chairman of the Council or the Secretariat of the Council is given full protection by the Constitution. The Government is further entrusted with duty to ensure compliance with the laws made by the Council. The constitution of the Council, its representative character, legislative authority and executive authority, lends reasonable assistance to appreciate, further, the true intent of the framers of the Constitution, to understand the scope of the meaning of the term "Azad Jammu and Kashmir. Therefore, by confining to assign a harmonious, positive and correct meaning to the term Azad Jammu and Kashmir", it is difficult to escape an approach of liberal interpretation of the term. Such an approach is quite reasonable, natural and positive to save the Constitution rather than to destroy any part or whole scheme of it.
126. It is already noticed by reference to the provisions of Section 44 that jurisdiction of this Court has been extended to all actions, orders, exercise of power and performance of functions by any person, authority, the Council and the Government. In other words, the jurisdiction of the Court spreads over all such actions, orders, directions, exercise of power in performance of functions, irrespective of territorial limits but in connection with State Subjects, to examine such orders of the Council, the Government or any person or authority. It may safely be said that election disputes of members of the Assembly or the Council elected from amongst the refugees settled in Pakistan, disputes relating to allocation of seats to students against reserved quota in educational institutions in Pakistan and disputes relating to State Subject and domicile certificates of refugees settled in Pakistan, are examined and decided by this Court The restriction of territorial limits is, therefore, immaterial in exercise of jurisdiction of this Court. Reference may be made to Ch. Akhtar Hussain's case, PJLD.1990 AJK 61.
127. The preamble of the Interim Constitution Act also refers to the United Nations Commission for India and Pakistan's resolutions adopted from time to time. These resolutions obviously were passed in order to settle the dispute over the future status of the State, by a democratic method of free and fair plebiscite under the auspices of the United Nations. When these resolutions were drafted, debated, scrutinized and finally adopted, the question of the status of Azad Government, its legitimate authority and filiations, equally received attention of the members of the Security Council and the United Nations Commission for India and Pakistan. It is, therefore, relevant to appreciate the scope of executive or administrative authority of the Government as viewed in the United Nations.
128. The Security Council, in ks resolution passed on April 21, 1948, directed to make truce by strict compliance with its terms. It is well known that before passing of the resolution, the Pakistan army had not entered in the State. It was May 1948 when Pakistan army also entered in die State. In such situation, the resolution was adopted in the light of the actual position of the belligerent forces in the State. Therefore, in Part 'A' of the resolution, it was insisted that peace and order may be restored. Under clause (i), the Government of Pakistan was directed to undertake to use its best endeavours:
(a) To secure the withdrawal from t he State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purpose of fighting and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State;
(b) To make known to all concerned that the measures indicated in this and the following paragraphs provide full freedom to all subjects of the State, regardless of creed, caste, or party, to express their views and to vote on the question of accession of the State and that therefore they should co-operate in the maintenance of peace and order."
In clause 2, Indian Government was given identical direction. In Part 'B' of the Resolution, reference was made to plebiscite and appointment of Plebiscite Administrator. The Government of India was entrusted the responsibilities to assist the Plebiscite Administrator in carrying out the process of holding plebiscite in the State. By virtue of Part 'C' of the Resolution, the Governments of India and Pakistan each were invited to nominate a representative to be attached to the Commission for such assistance as may be required in the performance of the task. The Commission was empowered to establish in Jammu and Kashmir such observers as it may deem expedient. The Commission, in its resolution of August 13, 1948, in Part II, proposed Truce agreement. By the time, the Pakistan army had also entered the State (in May, 1948). Thus, the Commission resolved: "A. (1) As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Councils the Government of Pakistan agrees to withdraw its troops from that State.
(2) The Government of Pakistan will use its best endeavour to secure the withdrawal from the State of Jammu and Kashmir of Tribesmen and Pakistani nationals n6t normally resident therein who have enter^i the State for the purpose of fighting.
(3) Pending a final solution, the territory evacuated bv the Pakistan troops Will be administered bv the local authorities under the surveillance of the Commission.
Clause (3) of Part II, 'A', is quite important and relevant to the proposition under consideration. It refers to administration, by the local authorities, under the surveillance of the Commission, over the territory evacuated by the Pakistani troops, pending a final solution of the Kashmir problem. Three things emerge from the language used by the Commission, as it refers to:
(i) the territory evacuated by the Pakistani troops:
(ii) its administration by the local authorities; and
(iii) under the surveillance of the Commission.
Reference to "evacuated territory" obviously means the territories of the liberated parts of the State of Jammu and Kashmir. This is supported by reference to evacuation by the Pakistani troops.
Therefore, no doubt can be entertained with respect to identification of the evacuated territory.
Clause (3) of Part II, 'A', refers to local authorities". This reference is obviously to the Azad Government and its administrative structure. The status of Azad Government has remained under controversy for the last 43 years, at different levels. One view is that the term "local authorities" refers to the provisional Government of the State of Jammu and Kashmir, in the light of its declaration made on its reconstitution on October 24, 1947. The counter view is that the use of the term "local authorities" has reduced the status of the Azad Government to that of a Municipal Committee. Both the views, prima facie, find support from the structure and status of the Government with reference to exercise of its executive authority and in the light of the ordinary meaning of the term "local authorities". It may not be out of place to refer here that the nomenclature and infra structure of the Azad Government was made and raised during the life time of the founder of Pakistan, Quaid-e-Azam Muhammad Ali Jinnah and under the supervision of the Prime Minister, (late) Liaquat Ali Khan. The Government was headed by the President with a Council of Ministers, including the Defence Minister. In addition to its executive duty, it controlled and supervised the Azad Kashmir Regular Forces comprising 35 regiments or more. It was in this view of the matter that Governor-General of Pakistan (Quaid-e- Azam), in his first conference with the Governor-General of India, on November 1, 1947 at Lahore, clearly accepted that he had "no control over the forces of the provisional Government of Kashmir". The Foreign Minister of Pakistan, while addressing the Security Council, on January 17,1948, by reference to the fighting forces against the Indian and Dogra army in the State, highlighted that: The people of Kashmir were fighting against heavy odds to end Dogra tyranny and to prevent Kashmir from falling into the hands of the Indian Dominion.
The Azad Kashmir Forces were almost wholly composed of the sons of the soil and even foreign observers testified that wherever they went, they had been welcomed as forces of liberation."
The aforsaid position raised the status of the Government as a de facto Government for the whole of State and not An ordinary local authority of the status of Municipal Committee, as presented by the counter view. It appears that the Government of Pakistan was equally anxious over the use of the words "administration by local authorities" in the liberated territory. It felt constrained to refer the matter to the members of the Commission for clarification. Thus, reference was made to the United Nations Commission for India and Pakistan. It was answered in positive manner, in a meeting held on September 2, 1948. Mr. Josef Korbel, a senior member of the Commission, who spoke for other members, elaborated the meaning of the term "local authorities" as:
(i) " By "local authorities" we means the Azad Kashmir people, though we cannot grant recognition to the Azad Kashmir Government."
(ii) We have gone so far as we could to meet the point of view of the Azad Kashmir people. We have tried to deal with the de facto situation. But we cannot lose sight of the fact that the State of Jammu and Kashmir still exists as a legal entity. We have to respect its sovereignty.
It was further added: "We agree that there will be no change in the existing administration of Gilgit."
129. The Government of Pakistan issued a press communique on January 16, 1949 in respect of the clarification sought from the Commission relating to various phraseologies used in the resolution of August 13,1948. It is reproduced:
(ii) The Commission further explained in its letter of 19th September, 1948, that the area in the occupation of forces under the overall control of the Pakistan High Command would remain in the occupation of the Azad Kashmir Forces. The Commission stated categorically that its Resolution of 13th August "does not contemplate the disarmament or disbanding of the Azad Kashmir Forces."
(iv) Pending a final solution, the territory evacuated bv the Pakistan troops would the administered bv the "local authorities" under the surveillance of the Commission. It was explained by the Commission that the term "local authorities" meant the "Azad Kashmir Government" although the Commission could not and did not accord recognition to that Government. It was further explained that "surveillance' did not mean actual control or supervision, and that the Commission's sole aim would be to ensure that the "local authorities" did not violate the cease-fire and truce agreements.
The Commission also explained that it did .Not contemplate surveillance of the Gilgit Administration which was temporarily in charge of a Political Agent of the Pakistan Government.
The Commission also made it dear that the Maharaja's Government would not, under any circumstances, be permitted to interfere with or to send any military or civil officials & the territory under the control of the "local authorities'.
(v) The Government of India undertook to ensure that the Government of State of Jammu and Kashmir would take all measures within their power to make it publicly known that peace, law and order would be safeguarded, and that all human ^nd political rights would be guaranteed. The Commission expected that similar action will be taken by the local athoilics" in the area evacuated by Pakistan troops."
It is manifest from the explanations advanced by the members of the United Nations Commission for India and Pakistan, that the term "local authorities" was used deliberately to acknowledge de facto status of provisional Government of the State of Jammu and Kashmir. The Azad Government according to the resolution, was accepted as the lawful authority to administer the liberated territories. Thus, the authority and right to hold the administrative control of the liberated territories on this side of the cease-fire line fully vested in the Azad Government and none else. The resolution was accepted both by India and Pakistan in addition to other members of the Security Council.
Therefore, it is an internationally acknowledged position that the liberated territories have to be governed by the Azad Government till the final solution of Kashmir issue.
130. The term "evacuated territory" was also construed by the Commission in its explanation sought by the Government of Pakistan, on September 2, 1948. The clarification was given as: "The term "evacuated territory" means the area which is under the control of Pakistan High Command, including for this purpose the Pakistan Army, the Azad Kashmir Forces and tribesmen."
131. It is of interest to note that on the situation emerging on the evacuation of Pakistan troops from the liberated territories, a very material question arose in respect of maintenance of law and order.
Such question attained importance as in the other part of the resolution, pertaining to withdrawal of Indian army, it was postulated that the Indian Government agreed to withdraw the bulk of its forces from the State. By reference to "withdrawal of bulk" of forces, it was explained that a minimum strength of Indian forces would be retained in the State to look after law and order. As a counter measure, on this side of the cease-fire line, Azad Forces were to stay intact to assist in maintenance of law and order by the Azad Government. An explanation was .Sought from the Commission with respect to the maintenance of Azad Kashmir Forces. In meeting held on August 31,1948, Mr. Josef Korbel explained: "The Commission has made no demand either for the disarming or the withdrawal of the Azad Forces."
This position was reiterated in paragraph 2(c) of the letter of the Commission addressed on September 19,1948. It was explained: "The resolution does not contemplate the disbarment or disbanding of the Azad Kashmir Forces."
132. The clear legal position which emerge from the aforesaid exposition, is:
(i) Azad Kashmir Government enjoys a de facto status in the United Nations;
(ii) Authority of the Government to administer the liberated territories has been acknowledged; and
(iii) Azad Kashmir Forces were to stay.
133. The interpretation of the term "Azad Jammu and Kashmir", when examined in the light of the scheme of the Interim Constitution Act, keeping in view the historical back-ground of liberation movement, the Kashmir dispute on the floor of the United Nations and settlement of the dispute through a free and impartial plebiscite under the United Nations' auspices, as agreed in the United Nations resolutions, it has to be accepted that the extent of administrative control of the Government spreaded over all the liberated territories, inclusive of the Northern Areas of the State.
Likewise the jurisdiction of this Court extend to all the liberated territories which formed part of the State of Jammu and Kashmir, all State Subjects wherever they may be, and all persons performing functions in connection with the affairs of the State (inclusive of Azad Jammu and Kashmir).
134. It is a celebrated rule of interpretation of Constitution or a statute that when the meanings of a word or term are not clear enough and are not found in consonance with the scheme of the Constitution or the statute, or are otherwise found in conflict when used in the same meaning and context in other parts of the statute, in such situation, the word "and" used in a particular context was likely to be substituted and read as "or" and vice versa. This was deemed essential for harmonious meaning of the term or phrase, as the case may be, and in order to save rather than to destroy the provisions of the statute. Both the words "and" and "or" are used interchangeably, so as to advance the purpose and objective of the provisions of the statute. This view finds ample support from Crawford's Interpretation of Statutes. At pages 322-323, it is postulated as: " In ordinary use the word "or" is a disjunctive that marks an alternative which generally corresponds to the word "either". In face of this meaning, however, the word "or" and the word "and" are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the court, through construction, may change one to the other.
This cannot be done if the statute's meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonise the statute and give effect to all of its provisions "
Following the aforesaid rule of interpretation in order to attain objective significance of the word "and" used in the definition of the term "Azad Jammu and Kashmir", it is permissible to construe the word "and" as "or". Such an approach is compatible with both, (i) the literal and (ii) the liberal approach of interpretation of Constitution, as it is not a static but organic in nature. This leads to the effect that it is permissible to read the word "and" as 'or". The definition of the term "Azad Jammu and Kashmir" has to be read as "the territories which have been liberated by the people of that State or are for the time being under the administration of Government..". Such an interpretation obviously suits to the scheme, of the Constitution. The phraseology "are for the time being under the administration of Government" is to be construed disjunctively and not conjunctively.
135. The aforesaid analysis of the proposition relating to territorial * jurisdiction of this Court, as conceived within the frame-work of the Interim Constitution Act, coupled with the acknowledged de facto status of Azad Government in the Act and international forum, leads to the conclusions:
(i) that this Court has been conferred jurisdiction by the Act for Azad Jammu and Kashmir and beyond, to the extent and in connection with the affairs of the State (Jammu and Kashmir);
(ii) in relation to all State Subjects, wherever they maybe; and
(iii) to enforce Fundamental Rights conferred by the Act.
136. The proposition relating to administrative control of the Azad Government received attention of this Court in Brigadier (Rtd) Muhammad Aslam Khan's .Case, decided by Mr. Justice Sardar Muhammad Sharif Khan, in Civil Arbitration No. 1, 2, 3, 4-A of 1967, on March 20, 1976. The leading facts of that case were that Brigadier (Rtd) Muhammad Aslam Khan secured lease of forest compartments falling on the Indian side of the Cease-fire Line. In view of the locality of the leased area, the matter was referred to the Government of Pakistan for its approval. It was examined by the Law Department of Pakistan and Ministry for Kashmir Affairs. On their approval, lease was granted vide agreement executed on November 13, 1963. There was a conflict on account of extraction of timber as on account of firing by the Indian army in the leased area, some workers were killed. In such situation, the Azad Government (lessor) terminated the lease unilaterally. The matter was referred to the arbitrator as agreed upon in the lease agreement.
Among others, the Government raised the objection that since the lease area was lying on the other side of the Cease-fire Line and the Government had no authority over that area, the forest standing thereon was beyond its effective control, as such the agreement was against public policy and void ab initio. The objection was repelled in the following manner: " This is an admitted fact and there can be no denial to it by the Government that the Government has a de facto possession of the area under lease over which a portion of the timber leased is still lying and it has been fully established by production of evidence along with the production of record that the area in dispute though on the other side of the Cease-fire Line, is in effective possession of the Azad Government of the State of Jammu and Kashmir. The administration of this Government is found exercising its full authority over the people of that area who are even subject to payment of land revenue to the administration of the Azad Government. This Government is for the whole of the State though for the time being it is illegally deprived of a larger part of the State bv force, vet and area over which it can extend its control, it will be deemed that, that area lies within the administrative control of the defendant-Government and as such leasing out the forest from that area under the effective control of the administration of this side, cannot be termed as an illegal act of the Government opposed to public policy. It is on record that the Forest Department as well as' the Revenue Department have dealings all over the area in question across the Cease-fire Line..."
" Any part of the State which comes under the administration of this Government in any way, it will be deemed that a legal right has vested in this Government to deal with that part of the State in conduct of its business. This has been the stand of the Government itself while dealing with the Brigadier in execution of the agreement and for this point of view, even the opinion of the Law Department of the Government of Pakistan was also favourably obtained by the Government."
The Government feeling dissatisfied with the above finding of the learned Judge, preferred an inter-Court appeal before a Division Bench of this Court. The Division Bench comprised of Mr. Justice Sardar Said Muhammad Khan J (presently Chief Justice of Azad Jammu and Kashmir) and Mr. Justice Sardar Muhammad Ashraf Khan, Additional J (presently Judge of the Supreme Court).
The point relating to effective control of the Government over the leased area was seriously canvassed on behalf of the Government. Mr. Justice Sardar Said Muhammad Khan, who delivered the verdict of the Court, on March 19,1981 (in Civil Appeal No. 26/76, titled "Azad Government vs. Brigadier Muhammad Aslam Khan", observed: Another point urged by the learned Counsel for the appellant was that both the agreements were against public policy and as such, the agreements as well as the award were illegal. He has propounded the theory of 'Public Policy' on the ground that thd area which was leased out in the instant case, was situated on the other side of the cease-fire line and there was not only an uncertainty with regard to the execution of the lease agreement but there was danger that relations between the two States would be jeopardized and even the lives of citizens of the State were at stake because the Indian forces might have launched an attack at any time, when the work of extraction of timber was carried on by the labourers in the lease area. The learned Counsel has argued that the agreement was ab' initio void because the Government, the lessor, has no legal authority to control the area which was on the other side of the Cease-fire Line. We are of the view that the Indian occupation of part of Jammu and Kashmir State against the popular will of the people of the State, does not make Cease-fire Line or so-called Control Line, a barrier to Azad Jammu and Kashmir Government to take any benefit from the territory over which it has its control.
The forcible occupation of the Indian Army is not recognized bv Azad Kashmir Government."
137. It is evident from the aforesaid observation of the learned Single Judge and the learned members of the Division Bench that it has been the consistent view of this Court that the Azad Government represents the whole State of Jammu and Kashmir.~The liberated territories of the Stale, since 1947, and such other territories which were not under the effective control of the Indian Government, were deemed under the effective administrative control of the Azad Government.
Therefore, the Azad Government, for all practical purposes, was considered as enjoying de facto control over such territories. The aforesaid view is fully approved, as a useful assistance to set at rest the controversy in question.
138. The learned Counsel for respondent No.1 relied on authorities from Indian and Pakistan jurisdiction, to convince that the jurisdiction of this Court confined to the liberated territories, viz., Azad Jammu and Kashmir, and not beyond that. It may not be out of context to refer to the relevant provisions of the Pakistan and Indian Constitutions to draw distinction between the provisions of the Interim Constitution Act and those Constitutions, to resolve the question relating to territorial jurisdiction.
139. Articles 175, 192 and 199 of Pakistan Constitution of 1973 related to establishment and jurisdiction of High Courts. Article 175(1) provided that: "There shall be......... a High Court for each Province and such other Courts as may be established by law."
Article 192(4) provide that the jurisdiction of a High Court may, by Act of Parliament, be extended to any area in Pakistan, not forming part of a Province. The aforesaid provisions postulated the scheme of establishment of High Court for each Province and its territorial limits, confining to a Province, unless it was extended by the Parliament to any area beyond a Province but within Pakistan.
140. Similar provisions were available in the Indian Constitution, in Articles 214 and 226(1) and (2). In Article 214, it was provided that: 'There shall be a High Court for each State".
Article 226(1) postulated: ".. Every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction..."
Sub-Article (2) laid down that: "the power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such powers, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
It is evident from the aforesaid provisions that High Court was conferred jurisdiction to issue writs, but, firstly, the power was to be exercised "throughout the territories in relation to which it exercised jurisdiction", It signified that the authority of High Court could not run beyond the territories of its jurisdiction for which it was established under Article 214. Secondly, the authority or the person to whom High Court issued writ, must be within those "territories". The authorities cited by the learned counsel for respondent No.1 laid down the principles in the light of the aforesaid provisions of the Constitutions of Pakistan and India.
141. We have already noticed elsewhere that although this Court was established for "Azad Jammu and Kashmir", but its authority to issue writ related to:
(i) performance of functions in connection^ with the affairs of Azad Jammu and Kashmir; and
(ii) performance of functions in connection with the affairs of the State.
These two aspects of territorial jurisdiction of this Court were quite distinct from the sphere of jurisdiction of High Courts of Pakistan and India. The authorities relied on by the learned Counsel for respondent No.1 were, therefore, of no assistance to the objection raised by him.
142. It is necessary to remember that the High Court was established for Azad Jammu and Kashmir.
The provisions relating to establishment of High Court for Azad Jammu and Kashmir, contained under Section 43 of the Act, reflect the nomenclature for establishment of the High Court. The sphere of its jurisdiction was incorporated in Section 44 and other provisions of the Act and not in Section 43. The relevant provisions relating to territorial jurisdiction of the High Court were contained in Section 44. Therefore, the name assigned to the High Court as Azad Jammu and Kashmir, confined to the liberated territories of the State but the scope of its writ extended beyond Azad Jammu and Kashmir, as already enunciated elsewhere. The term "High Court for Azad Jammu? And Kashmir" was, therefore, not synonymous to its exercise of writ jurisdiction. The sphere of its writ jurisdiction included Azad Jammu and Kashmir and not vice versa.
Next, we pass on to the second limb of the proposition to ensure whether the Government of Pakistan is amenable to the jurisdiction of this Court or not.
143. We have examined at length the back-ground of the liberation movement, its historical perspective, the emergence of Kashmir dispute, the conflict in the state in 1947; bilateral negotiations between the Governors-General of Pakistan and India; Indian move to take the Kashmir dispute to the floor of the United Nations and passing of resolutions by the Security Council and the United Nations Commission for India and Pakistan; the responsibilities assigned to both Pakistan and India till such time as the dispute was settled through the democratic method of free and fair plebiscite under the auspices of the United Nations; the acceptance of responsibilities by the Government of Pakistan in the United Nations; making of truce agreement with India vis-a- vis the State and all other incidental matters, which reflect that the Government of Pakistan is as much physically present in Azad Jammu and Kashmir as the Azad Government. It is also manifest that the Government of Pakistan by undertaking the responsibilities of defence and security of the liberated territories, has admitted its physical presence within the liberated territories, called as "Azad Jammu and Kashmir" (including the Northern Areas). In Northern Areas, as claimed by respondent No.1 (Government of Pakistan), it enjoys de facto control as. The administrative machinery functioning therein is exclusively supervised and controlled by it.
144. Paragraph 4 of the preamble of the Interim Constitution Act, 1974, reads: AND WHEREAS, in the discharge of its responsibilities under the UNCIP Resolutions, the Government of Pakistan has approved of proposed repeal and re-enactment of the said Azad Jammu and Kashmir Government Act, 1970, and authorised the President of Azad Jammu and Kashmir to introduce the present Bill in the Legislative Assembly of Azad Jammu and Kashmir for consideration and passage;"
It is manifest from the aforesaid provisions of the preamble that the Act was enforced in Azad Jammu and Kashmir by its Assembly with the approval of the Government of Pakistan. Approval of the Government of Pakistan was deemed necessary in view of its involvement in the affairs of Azad Jammu and Kashmir in the light of its responsibilities under the UNCIP Resolutions.
145. Section 31 of the Act relates to the legislative powers of the Council and the Assembly. Sub- section (3) envisages that neither the Council nor the Assembly shall have the power to make any laws concerning the respective subjects described therein. It is reproduced: "(3) Neither the Council nor the Assembly shall have the power to make any law concerning.
(a) the responsibilities of the Government of Pakistan under the UNCIP Resolution;
(b) the defence and security of Azad Jammu and Kashmir;
(c) the current coin or the issue of any bills, notes or other currency; or
(d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid."
Other relevant provisions are laid down in Section 56 of the Act. These are reproduced: .
"56. Act not to derogate from responsibilities of Pakistan.- Nothing in this Act shall derogate from the responsibilities of the Government of Pakistan in relation to the matters specified in sub-section
(3) of Section 31 or prevent the Government of Pakistan from taking such action as it may consider necessary or expedient for the effective discharge of those responsibilities."
It is evident that the law-making jurisdiction of both the Council and the Assembly has been expressly excluded in respect of the aforesaid subjects. Moreover, under the scheme of the Constitution, the Government of Pakistani has been empowered to take such action as it may consider necessary or expedient for the effective discharge of its responsibilities under the UNCIP Resolutions.
146. The leading Resolutions of the United Nations Commission for India and Pakistan, which sum up the collective responsibilities of the Government of Pakistan vis-a-vis the State, are listed in its Resolutions of August 13, 1948 and January 5, 1949. Both the Resolutions, being relevant to the proposition, are reproduced: Resolution of the United Nations Commission for India and Pakistan, of August 13,1948.
The United Nations Commission for India and Pakistan.
Having given careful consideration to the points of view expressed by the Representatives of India and Pakistan regarding the situation in the State of Jammu and Kashmir, and Being of the opinion that the prompt cessation of hostilities and the correction of conditions the continuation of which is likely to endanger international peace and security are essential to implementation of its endeavours to assist the Governments of India and Pakistan in effecting a final settlement of the situation, Resolves to submit simultaneously to the Governments of India and Pakistan the following proposal: PART (I)
Cease-fire Order A. The Governments of India and Pakistan agree that their respective High commands will issue separately and simultaneously a cease-fire order to apply to all forces under their control in the State of Jammu and Kashmir as of the earliest practicable date or dates to be mutually agreed upon within four days after these proposals have been accepted by both Government.
B. The High Commands of Indian and Pakistan forces agree to refrain from taking any measures that might augment the military potential of the forces under their control in the State of Jammu and Kashmir. (For the purpose of these proposals "forces under their control" shall lie considered to include all forces, organised and inorganised, fighting or participating in hostilities on their respective sides).
C. The Commanders-in-Chief of the forces of India and Pakistan shall promptly confer regarding any necessary local changes in present dispositions which may facilitate the cease-fire.
D. In its discretion, and as the Commission may find practicable, the Commission will appoint military observers who under the authority of the Commission and with the co-operation of both Commands will supervise the observance of the cease-fire order.
E. The Government of India and the Government of Pakistan agree to appeal to their respective peoples to assist in creating and maintaining an atmosphere favourable to the promotion of further negotiations.
PART (II)
Truce Agreement Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as outlined in Part I, both Governments accept the following principles as a basis for the formulation of a truce agreement, the details of which shall be worked out in discussion between their Representatives and the Commission.
A. (1) As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from that State.
(2) The Government of Pakistan will use its best endeavour to secure the withdrawal from the State of Jammu and Kashmir of tribesme n and Pakistan nationals not normally resident therein who have entered the State for the purpose of fighting.
(3) Pending a final solution the territory evacuated by the Pakistan troops will be administered by the local authorities under the surveillance of the Commission.
B. (1) When the Commission shall have notified the Government of India that the tribesmen and Pakistan nationals referred to in Part II A 2 hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further, that the Pakistan forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the Commission.
(2) Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of cease-fire the minimum strength of its forces which in agreement with the Commission are considered necessary to assist local authorities in the observance of law and order. The Commission will have observers stationed where it deems necessary.
(3) The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within their power to make it publicly known that peace, law and order will be safeguarded and that all human and political rights will be guaranteed.
C. (1)Upon signature, the full text of the Truce Agreement or communique containing the principles thereof as agreed upon between the two Governments and the Commission, will be made public.
PART (III)
The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance With the will of the people and to that end, upon acceptance of the Truce Agreement both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured."
Resolution adopted at the meeting of the United Nations Commission for India and Pakistan on 5th January, 1949.
The United Nations Commission for India and Pakistan.
Having received from the Governments of India and Pakistan in Communications, dated December 23 and December 25, 1948, respectively their acceptance of the following principles which are supplementary to the Commission's Resolution of August 13,1948:
1. The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite.
2. A plebiscite will be held when it shall be found by the Commission that the cease-fire and truce arrangements set forth in Part I and II of the Commission's resolution of 13 August 1948, have been carried out and arrangements for the plebiscite have been completed;
3. (a) The Secretary General of the United Nations will in agreement with the Commission, nominate a Plebiscite Administrator who shall be a personality of high international standing and commanding' general confidence. He will be formally appointed to office by the Government of Jammu and Kashmir.
(b) The Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary for organizing and conducting the plebiscite and for ensuring the freedom and impartiality of the plebiscite.
(c) The Plebiscite Administrator shall have authority to appoint such staff or assistants and observers as he may require.
4. (a) After implementation of Part I and II of the Commission's resolution of 13 August 1948, and when the Commission is satisfied that peaceful conditions have been restored in the State, the Commission and the Plebiscite Administrator will determine, in consultation with the Government of India, the final disposition of Indian and State armed forces, such disposal to be with due regard to the Security of the State and the freedom of the Plebiscite.
(b) As regards the territory referred to in A.2 of Part II of the resolution of 13 August, final disposal of the armed forces in that territory will be determined by the Commission and the Plebiscite Administrator in consultation with the local authorities.
5. All civil and military authorities within. The State and the principal political elements of the State will be required to co-operate with the Plebiscite Administrator in the preparation for the holding of the Plebiscite.
6. (a) All citizens of the State who have left it on account of the disturbances will be invited and be free to return and to exercise all their rights as such citizens. For the purpose of facilitating repatriation there shall be appointed two Commissions, one composed of nominees of India and the other of nominees of Pakistan. - The Commissions shall operate under the direction of the Plebiscite Administrator. The Governments of India and Pakistan and all authorities within the State of Jammu and Kashmir will collaborate with the Plebiscite Administrator in putting this provision into effect.
(b) All persons (other-than dozens of the State who on or since 15 . August, 1947 have entered it for other than lawful purpose, shall be required to leave the State.
7. All authorities within the $tate of Jammu and Kashmir will undertake to ensure, in collaboration with the Plebiscite Administrator, that:
(a) There is no threat, coercion or intimidation, bribery or other undue influence on the voters in the Plebiscite.
(b) No restrictions are placed on legitimate political activity throughout the State. All subjects of the State, regardless of creed, caste or party, shall be safe and free in expressing their views and in voting on the question of the accession of the State to India or Pakistan. There shall be freedom of the Press, speech and assembly and freedom of travel in the State, including freedom of lawful entry and exit;
(c) All political prisoners are released;
(d) Minorities in all parts of the State are accorded adequate protection; and
(e) there is no victimization.
8. The Plebiscite Administrator may refer to the United Nations Commission for India and Pakistan problems on which he may require assistance, and the Commission may in its discretion call upon the Plebiscite Administrator to carry out on its behalf any of the responsibilities with which it has been entrusted.
9.At the conclusion of the plebiscite, the Plebiscite Administrator shall report the result thereof to the Commission and to te Government of Jammu and Kashmir. The Commission shall then certify to the Security Council whether the Plebiscite has or has not been free and impartial.
10.Upon the signature of the truce agreement, the details of the foregoing proposal will be elaborated in the consultations envisaged in Part III of the Commission's resolution of 13 August, 1948. The Plebiscite Administrator will be fully associated in these consultations.
Commends the Governments of India and Pakistan for their prompt action in ordering a cease-fire to take effect from one minute before midnight of first January 1949, pursuant to the agreement arrived at as provided for by the Commission's Resolution of 13 August, 1948; and resolves to return in the immediate future to the sub-continent to discharge the responsibilities imposed upon it by the resolution of 13 August, 1948 and by the foregoing principles."
We do not propose to undertake an exercise to analyse the true scope of the responsibilities of the Government of*Pakistan under the aforesaid UNCIP Resolutions, as the purpose to settle the proposition is served by reference to these resolutions, to hold that the Government of Pakistan being linked and effectively connected to safeguard the defence and security of Azad Jammu and Kashmir, is physically present in the liberated territories. Without any reservation, it has already, in the near past, conceded to the jurisdiction of this Court. We may refer to (i) Tariq Farooqui's case, PLD 1984 SC(AJ&K) 47 and (ii) Hamid Akhtar's case, PLD 1988 SC(AJ&K) 6.
147. Section 56, read with Section 31 (3) of the Act postulate the scheme of the Aet, whereby the Government of Pakistan has been assigned a special role in the liberated territories of the State.
We have reproduced the provisions of Section 31(3) elsewhere. Section 56 extends the scope of authority of Government of Pakistan in order to discharge its responsibilities by taking suitable action as it may consider necessary or expedient, in that direction.
It is evident from the aforesaid scheme that the Interim Constitution Act conceived, among others, the sphere of jurisdiction of the Government, the Legislature, the Council and the Government of Pakistan. All these have been assigned specific sphere of jurisdiction under the Act. The jurisdiction of these institutions, obviously pertained to Azad Jammu and Kashmir. Therefore, in addition to the Government and the Council, the Government of Pakistan has been equally assigned its executive authority in connection with the affairs of Azad Jammu and Kashmir. The authority of the Government of Pakistan over-lapped the authority of the Azad Government and the Council, as noticed in the provisions of Section 56. This supra power of the Government of Pakistan was exercisable to the exclusion of the executive, legislative authority of the Council and the Assembly, but it was subject to judicial review of the High Court, in all situations. The High Court was, therefore, empowered to examine an action of the Government of Pakistan purported to have been taken in exercise of powers under Section 56 read with Section 31 (3) of the Act. This aspect of jurisdiction was fully protected by the provisions of Section 44 (1) (a) and (b).
148. The aforesaid analysis leads to the conclusion that the writ of the High Court may run:
(i) in Azad Jammu and Kashmir and beyond;
(ii) in connection with the affairs of Azad Jammu and Kashmir;
(iii) in connection with the affairs of the State: and
(iv) to and against the Azad Government, the Council, the Government of Pakistan or any other person or local authority which performed functions in connection with the affairs of Azad Jammu and Kashmir or the State, as the case may be.
149. It was suggested that the capital seat of the Government of Pakistan is in Islamabad and the Government of Pakistan not being located in Azad Jammu and Kashmir, was not amenable to the jurisdiction of this Court. It is correct that the capital seat of Pakistan was in Islamabad and that Pakistan was not part of Azad Jammu and Kashmir and vice versa, but the fact remains that the Government of Pakistan was assigned a special responsibility in connection with the affairs of Azad Jammu and Kashmir. That responsibility was accepted and exercised actively for the last 45 years.
Therefore, physically as well as by fiction of law, the Government of Pakistan was amenable to the jurisdiction of this Court.
150. In case we concur with the view of the learned Counsel for the respondent, in that situation, it has to be accepted that the seat of the Council for Azad Jammu and Kashmir is also located in Islamabad (Pakistan). On assumption that by virtue of location of the office or seat of its governance having been located outside Azad Jammu and Kashmir, would exclude such institution from the jurisdiction of the Court, would tantamount to negation of the scheme and characteristic features of the Interim Constitution Act. The suggestion is, therefore, not found compatible with the frame-work of the Constitution and its leading features. The contention on this score is also repelled.
151. One of the points sought to be resolved pertains to the a greement executed among the Government of Pakistan through its Minister without portfolio, the President of All Jammu and Kashmir Muslim Conference and the President of Azad Kashmir Government. The agreement appears to have been executed on April 28, 1949, whereby spheres of jurisdiction are articulated by the aforesaid three authorities, to run the administration of the liberated territories, to carry out the policies vis-a-vis the liberation movement and to perform functions in connection with the Kashmir dispute, undertaken by the United Nations Commission for India and Pakistan. In order to appreciate the scheme of the agreement and its implications on the point sought to be resolved in the petition, it is deemed expedient to reproduce the agreement in question: "Heads of agreement between Hon'ble Minister without Portfolio, The President of the All Jammu and Kashmir Muslim Conference and the President of the Azad Jammu and Kashmir Government.
1. Civil Administration of Azad Kashmir Area.
(i) The Azad Kashmir Cabinet shall formulate policy and generally supervise administration . In Azad Kashmir area. Day to day administration shall however, be entrusted to executive officers viz. The Heads of Departments who shall also be secretaries to Government for their respective Departments.
(ii) Besides the Heads of Departments the Azad Kashmir Government will have only the following two Secretaries:
1. Secretary Finance Department, and
2. Cabinet Secretary.
The cabinet Secretary besides maintaining record of Cabinet proceedings will be directly responsible to keep the Cabinet well- posted with all matters connected with the plebiscite and for all correspondence with the Plebiscite Administrator.
(iii) The details of the set up will be as follows: #tbs Minister-incharge Hon'ble President. #the #tbs
(iii) The details of the set up will be as follows: Head of Deptt.- cum- Secretary. #the Subject
1. Law am1 Order, Commissioner chief including Jails & Secretary. #tbs Minister for Rehabilitation.
Minister of Health and Education. #the #tbs Director of Rehabilitation & Secretary Rehabilitation Deptt.
Director of Health Services & Secretary Health Service .. #the #tbs f>. M, Ileal & Hi 1th. #the #tbs
5. Rehal dn. Iiion. #the #tbs Revenue & Finance Minister. #the #tbs Finance Secretary. #the #tbs
4. Finance. #the #tbs Revenue & Finance Minister. #the #tbs Minister for Civil Supplies. #the #tbs Director of Food & Civil Supplies and Secretary to Government Civil Supplies Deptt.
Commissioner-cum-Chief Secretary. #the #tbs
3. Revenue (including Forests, Customs) and Public Works. #the #tbs
2. Food and Civil Supplies. #the Police.
1993 Key Law Reports C.C 475
7. Education. Director of Education & Minister of Health Secretary Education. And Education.
8. Cabinet & Plebiscite Works. Cabinet Secretary. Hon'ble President. {{Data misarranged}}
(iv) No one below the rank of Head of Department/Secretary shall have access to the Ministers and orders to lower staff shall always be communicated through the Head of Department/Secretary.
(v) Heads of Departments/Secretaries shall submit all important cases to their Ministers and shall generally keep them fully informed of developments in their respective Departments.
(vi) Heads of Departments/Secretaries who are at present located outside Azad Kashmir area may continue to be so located. But they would meet their Ministers once or twice a week and put up cases on which orders of Ministers have to be obtained.
(vii) Whenever a Head of Department feels that an order passed by an Hon'ble Minister needs revision, he would bring the case to the notice of the Commissioner who in his capacity as' Chief Secretary to the Azad Kashmir Government, will endeavour to have the matter satisticorily settled, if necessary, in consultation with the Chief Plebiscite Adviser to the Pakistan Government, who will also be notified by the Azad Kashmir Government as their Chief Adviser.
(viii) Officers loaned to Azad Kashmir Government will be formally appointed as Officers-on- Special Duty with the Chief Plebiscite Adviser and their services will informally be placed at the disposal of Azad Kashmir Government who would formally appoint them to office by notification in their own Gazette. All correspondence of the Azad Kashmir Government with the Secretariat of the Minister without Portfolio, Government of Pakistan, will be through the Chief Plebiscite Adviser:
(ix) Pending the appointment of a Public Service Commission for Azad Kashmir an ad hoc Committee consisting of the following may be appointed to recommend future recruitment and promotions in services in the Azad Kashmir Government.
1. Commissioner (Chairman)
2. Judge of Azad Kashmir High Court.
3. The Head of the Department Connenction.
4. Cabinet Secretary as Member-Seen.
11 FINANCIAL ARRANGEMENTS.
(i) Money advanced to- tin A.K. Government for specific purposes shall be spent for those purposes and no other. The Pakistan Government shall satisfy themselves that they have been properly spent.
(ii) Moneys advanced to the A.K. Government as general grants-in- aid shall be given only after the A.K. Government has produced a budget statement for the Government as a whole, In the case of these funds, the Government of Pakistan shall satisfy themselves that the A. K. (Government spend according to the budget proposals. For this purpose, they may ask for periodical statement of account from that Government.
(iii) The Pakistan Government shall loan the services of an Accounts Officer for employment as Accountant-General of the Azad Kashmir Government.
III. Division of functions between the Government of Pakistan, the Azad Kashmir Government and the Muslim Conference.
A. MATTERS WITHIN THE PURVIEW OF PAKISTAN GOVERNMENT.
(i) Defence. (Complete control over A.K. Forces).
(ii) Negotiations with U.N.C.I.P.
(iii) Foreign Policy of A.K. Government.
(iv) Publicity in Pakistan and foreign countries.
(v) Coordination of arrangements for relief and rehabilitation of refugees.
(vi) Coordination of publicity and all arrangements in connection with the plebiscite.
(vii) All activities within Pakistan itself with regard to Kashmir such as procurement of food and civil supplies transport, running of refugee camps, medical arrangements etc.
(viii) All affairs of the Gilgit and Ladakh areas under the control of Political Agent at Gilgit.
B. MATTERS WITHIN THE PURVIEW OF A.K. GOVERNMENT.
(i) Policy with regard to administration in Azad Kashmir.
(ii) General supervision of administration in Azad Kashmir.
(iii) Publicity with regard to activities of the A.K. Government and its administration.
(iv) Advise to H.M. Without Portfolio with reared to negotiations with U.N.C.I.P.
(v) Development of economic resources of A K area.
C. MATTERS WITHIN THE PURVIEW OF MUSLIM CONFERENCE.
(i) Publicity with regard to plebiscite in A.K. Area.
(ii) Field work and publicity in the Indian occupied area of the State.
(iii) Organisation of political activities in the A.K. And the Indian occupied areas ul the State.
(iv) Preliminary arrangements in connection with plebiscite.
(v) Organisation for contesting the plebiscite.
(vi) Political work and publicity among Kashmir refugees in Pakistan.
(vii) General guidance of the A.K. Government.
(viii) Advice to H.M. Without portfolio with regard to negotiations with U.N.C.I.P. Sd/- I agree to this insofar Sd/- (Mohammad Ibrahim) as this concerns the (M.A. Gurmani)
President, Azad . Sphere of activities 6f Minister without Kashmir Govt. The M.C. Portfolio, Govt, of Sd/- Pakistan. - (Ghulam Abbas) President All Jammu and Kashmir Muslim Conference. {{Data misarranged}} It is evident from the provisions of the agreement that various administrative and political functions concerning the liberated territories of the State, the liberation movement and Kashmir dispute in the United Nations, were bifurcated and assigned to different authorities, privy to the arrangements settled in the agreement. The Azad Kashmir Government was assigned primarily the responsibility and functions of supervising the administration in Azad Kaishmir area. The first part contained various subjects, described therein, which were entrusted to Azad Kashmir Government.
The second part, postulated in Part III, was relevant as by virtue of that part of the agreement, the sphere of administrative jurisdiction was divided among the component parties to the agreement.
The matters assigned to the Government of Pakistan were listed under caption 'A'. These subjects were eight in number. It contained the responsibilities of the Government of Pakistan in respect of all affairs of Gilgit and Ladakh, the area at the relevant time, under the control of Policial Agent at Gilgit'
152. The aforesaid arrangement was accepted as a matter of policy, by the parlies, in view of the situation of Kashmir dispute, the tempo of liberation movement and the importance of administration in the liberated territories. This policy continued till 1970, when an Act of the Government was enforced on September 5, 1970. Prior to the aforesaid Act, etc administrative business of Azad adult franchise. The Legislative Assembly was also provided. It consisted of the President and 25 members, of whom:
(i) 24 were to be elected directly on the basis of adult franchise; and
(ii) a woman, to be elected by the directly elected members.
The State refugees, settled in Pakistan, were once again associated with their compatriots in Azad Jammu and Kashmir. The electoral college for the election of the President as well as the Assembly, comprised of the State Subjects residing in Azad Jammu and Kashmir and settled in Pakistan. On identical pattern, the Slate refugees settled in Pakistan were provided proportionate representation in the Assembly.
159. We have recapitulated the legislative developments in Azad Jammu and Kashmir in order to appreciate the distribution, of functions envisaged in the agreement in question. It is considered necessary as we shall see that the scheme of the Act of 1970 almost identified itself with the division of functions described in the agreement. The framers of the Act of 1970 articulated the division of functions between the Azad Government and the Government of Pakistan in view of the historical back-ground of the liberation movement, the Security Council and United Nations Commission for India and Pakistan's resolutions and likely settlement of the Kashmir dispute. We propose to confine our deliberations to the relevant subjects and in this view of the matter, we shall advert to the relevant provisions of the Act of 1970 to ascertain the legal value of the agreement after the enforcement of the Act 1970, substituted by the Interim Constitution Act, 1974.
160. It is noticed that the Government of Pakistan retained the matters and subjects under its control as listed in clause 'A' under Part III of the agreement. Section 19 of Act 1970 pertained to legislative powers of the Assembly. The Assembly was empowered to make laws, in respect of various subjects listed under sub-sections (1) and (2) of Section 19. Sub-section (3) expressly excluded the jurisdiction of the Assembly to make laws in respect of various matters. It is reproduced: "The Legislative Assembly shall not have the power to make any law concerning: -
(a) The responsibilities of the Government of Pakistan under the UNCIP Resolutions;
(b) the defence and security of Azad Jammu and Kashmir; or
(c) the current coin or the issue of any bills, notes or other paper currency."
A comparative study of the list of subjects described in Clause 'A' Part III o the agreement and sub- section (3) of Section 19 of the Act of 1970, reflects that the Assembly was deprived of its right to make laws with respect to the subjects contained under Clause 'A' of the agreement, barring the affairs of Gilgit and Ladakh. That leads to the conclusion that on enforcement of the Act of 1970, the agreement in question was superseded, as the administrative control in respect of the subjects and matters listed in the agreement were remunerated in the Act itself.
161. Ordinarily, it should have been expressly provided in the Act 1970 that the agreement in question was repealed as almost all the matters, except matter No. (viii), were described in the Act, yet the omission to make an express provision, leads M the conclusion that by implication, the provisions of the agreement were repealed, It is an accepted rule that a statute does not contain surplus provisions in it. In other words, when a statute succeeds a previous statute, the provisions and their implications contained in the succeeding statute or Act, supersede the provisions of the previous one. This is so as both the statutes relate to the same subject-matter and undertake common purpose. Therefore, it is safe to construe the intention of the framers of the Act 1970. By enforcement of the Act, the agreement was repealed or abrogated.
162. Besides, a presumption is available to hold that on enacting Act 1970, the framers of the Act intended to repeal the agreement by implication, as both the Act and the agreement, providing an identical scheme of sphere of administrative jurisdiction relating to the liberated territories of the State, could not exist simultaneously. The proposition finds support from Crawford, and we quote under Note 312 at page 634: "An implied repeal will not take place under these circumstances, unless the two statutes are inconsistent and irreconcilable................ The two statutes must relate to the same subject matter and have the same purpose..... It is essential that the new statute cover the entire subject matter of the old."
In present case, it is noticed that the matters listed in the agreement and the subjects excluded from the jurisdiction of the Legislative Assembly, are identical and have the same purpose. It is also noticed that the Act of 1970 squarely covered the subject matter listed in the agreement.
163. Next, adverting to the provisions of the Interim Constitution Act, 1974, as noticed earlier, the subject matter contained in the agreement, finds its mention in Sections 31 (3) and 56 of the Act.
The provisions of Section 56 rather provide a wider scope of jurisdiction of the Government of Pakistan in relation to Azad Jammu and Kashmir.
164. It is relevant to state here that the subject matter relating to administrative control of Gilgit and Ladakh, as contained in the agreement, has not been excluded expressly out of the purview of administration of the Government and the legislative authority of the Assembly. In other words, the Government of Pakistan has not retained the administrative control of Gilgit and Ladakh within the scheme of the Act 1974. In this view of the situation, the administrative control of the Northern Areas, ipso facto, reverted to the jurisdiction of Azad Government. That being the position, on enforcement of Act 1970 and thereafter the Interim Constitution Act 1974, the administrative control of the Northern Areas should have been automatically taken over by the Azad Concernment and the people of the Northern Areas should have been provided their share of representation in the Government, the Assembly, the Council and civil services. The omission on the part of the Government to take over administration by providing representation to the people of the Northern Areas in the aforesaid institutions, appears the result of inaptitude and lack of care.
165. Our l adings in this regard find ample support from the fact that the Interim Consultation >n Act, 1974 was framed, promulgated and enforced with the approval of the Government of Pakistan.
Its preamble is very comprehensive, sell- speaking and n presenting, besides the historical back- ground of the liberation movement, the disputed nature of the State, its position in the United Nations, the resolutions of the UNCIP including the responsibilities assigned to the Government of Pakistan under these resolutions and acceptance of the same by the Pakistan Government. We have already analysed that the Northern Areas are part of Jammu and Kashmir State. These areas were liberated by the people of the State in 1947 and this position was acknowledged by the Government, of Pakistan at all levels, including its stance in the Security Council, The Security Council and the members of the United Nations Commission for India and Pakistan equally recognised such position of the Northern Areas, in their deliberations and decisions. Therefore, the omission to include the administrative control of these areas within the purview of jurisdiction of Pakistan, to the exclusion of A/ad Government, was deliberate and purposeful. This was quite in scheme with the stance of Pakistan in the United Nations and in support of fair plebiscite, in which the people of the State were promised to exercise their free will to make a choice for their ultimate destination, relating to accession of the State. No other motive or intention can be attached to the commission to include the administrative control of Northern Areas among the list of subjects contained under Section 31 (3) or Section 56 of the Act. Therefore, suffice it to say that the Act 1974, by implication, repealed the agreement of 1949. That agreement carries no legal weight as such.
166. It is noticed elsewhere that in the written statement, the Azad Government and All Jammu and Kashmir Muslim Conference expressly averred that on enforcement of the Interim Constitution Act, it was enjoined upon the Government of Pakistan to restore the administrative control of the Northern Areas to the Azad Government. The averments supplemented our interpretation of the provisions of the Act and the agreement. All Jammu and Kashmir Muslim Conference being privy to the promulgation and enforcement of Acts 1970 and 1974, was in a much better position to appreciate the implications of conditions relating to distribution of administrative sphere of jurisdiction described in the aforesaid agreement. In its written statement, the Muslim Conference has taken a definite stand1 and averred that the administrative control of the Northern Areas was likely to revert to the Azad Government on enforcement of the Act 1970 and Act 1974. In support of its aforesaid view, a letter addressed by the President of Azad Jammu and Kashmir to the President of Pakistan was appended with the written statement. The relevant excerpts of the letter have already been reproduced elsewhere. An identical stand has been taken by the Azad Government. This leads to the conclusion that the Azad Government and the ruling party are in agreement that the Northern Areas may be annexed with other part of the liberated territories of the State and the people of these areas may be associated with their compatriots in all national institutions, including the Government. The stance taken by the Azad Government and the Muslim Conference is quite compatible and in agreement with the view of this Court.
167. The agreement, as it appeared in its scheme, phraseology used therein and division of spheres of jurisdiction, reflected its character as an ad hoc or transitional arrangement. It served its purpose till such time the Azad Government, with the approval of Pakistan Government, enforced its own Rules of Business, subsequently amended and superseded by Acts 1960,1964,1968,1970 and 1974. A transitional arrangement relating to distribution of administrative jurisdiction and authority of the Government, by itself, enjoyed no legal sanction in its support. Therefore, unless the agreement carried a legal sanction in its support, it was not imperative to analyse its implications vis-a-vis the jurisdiction of Azad Government or the Government of Pakistan, pertaining to the liberate territories of the State. Thus, the said agreement occupied the field till the enforcement of the Rules of Business of 1950 and the subsequent statuted escribed above.
168. Even the Azad Jammu and Kashmir Legislative Assembly made a unanimous demand, through a resolution passed in its session held on July 15, 1991, that the Northern Areas may be annexed with Azad Jammu and Kashmir, by providing due representation to the people of these areas. The resolution of the Assembly is reproduced: {{Urdu text missed}}
169. In support of the objection relating to absence of jurisdiction ol this Court in respect of the Northern Areas, it was contended by the learned Deputy Attorney General of Pakistan that the points raised in the petition were political questions, as such this Court may not resolve political questions in exercise .Ol its writ jurisdiction. The objection was not convassed at the time of arguments. As the point relating to nature of the proposing as political one, has been raised in the written statement, we consider it necessary to express our view on that score.
170. In exercise of judicial authority, Courts are invariably confronted with political issues. Political issues arc not supposed to be resolved by Courts ol law, as such issues are settled outside the judicial forum. But this is not an absolute rule. Issues of political nature, when blended with fundamental rights, do deserve their settlement by Courts of law. Besides, when an issue purported to be political one, enjoined interpretation of Constitution or provisions ol a statute, in such situation. Court alone is empowered to construe and interpret the relevant provisions, to ascertain the implications and results of the provisions ol live Constitution or the Statute vis-a-vis the impugned political issue.
171. In free States having written Constitutions, superior Courts are invariably confronted with issues of political consequences, emanating from the interpretation of the. Provisions of written Constitutions, In third world countries, it is noticed that superior Judiciary was frequently confronted with national crisis, involving political controversies. The Courts never hesitated from performing their onerous functions, bv resolving the controversies, In such situation, what is expected of Judges is their impartiality, uprightness and correctness of their pronouncement. The decisions of the Court are not to be tampered with mere sentiments, emotions, likings and disliking, but have to confine to Like true spirit of law and correct intendment of the framers of the Constitution or law.
172. There arc various instances when amendments were made in the Constitution of India; the Supreme Court of India settled all the controversies relating to such amendments, irrespective of political motivation accompanying them. In Pakistan, three Constitutions were abrogated. Various amendments were made in the Constitutions from time to time. Martial law was imposed invariably. The superior Judiciary was seriously confronted with the constitutional crisis, It never failed in its duly to resolve all the controversies raised before it, without hesitation. In "Policy Arguments in Judicial Decisions" by John Bell, 1983, page 5, Lord Hailsham was quoted as: " Judges cannot choose the work they do; they have to come to a decision one way or another on all litigation which is brought before them. If they assume jurisdiction, they are in politics, if they decline jurisdiction, they are in politics. All they can hope to be is impartial...."
It was rightly pointed out by the learned Chief Justice of the United Kingdom that Judges have no choice to assume or decline jurisdiction in any matter as they are under duty to give decision in every matter brought before them, unless, of course, they were expressly excluded from deciding such cases. Identical is the situation in the present case. We have no choice to throw away the proposition raised before us as being in chair of the highest Court, it is enjoined upon us to render decision in the matter one way or another, but without fear or favour, liking or disliking, without fear of consequences, in an impartial and upright manner. This disposes of the objection under consideration.
173. Next, we. Pass on to the status of the petitioners whether they arc eligible to invoke ;he jurisdiction of this Court for the redress of their grievance or not. Malik Muhammad Miskeen and Haji Amir Jan are residents of Tangir, District Dia Mir. Shaikh Abdul Aziz, the third petitioner, is an Advocate, residing and practising at Muzaffarabad, Azad Jammu and Kashmir. The points raised in the petition are:
(i) that the Northern Areas are part of Azad Jammu and Kashmir. Their separation and detachment from this area, is illegal;
(ii) that exclusion of Northern Areas from Azad Jammu and Kashmir has resulted in depriving the residents of these areas from legitimate rights of representation in Azad Government, the Assembly, the Council and other institutions, as well as basic rights and civil liberties; and,
(iii) that these areas were being administered without any lawful authority. The petitioners have:
(a) challenged the authority of the administrators of the area for undertaking the administration;
(b) prayed for a direction to the Azad Government to take over the administration of the areas; and
(c) to provide due representation to the people of these areas in the Government, the Assembly, the Council, and to establish administrative and judicial administration, as described in the Interim Constitution Act, 1674.
174. All the respondents, except No.1, admitted that the petitioners No.1 and 2 are residents of the Northern Areas, as such arc State Subjects. Respondent No.1, though denied the averment, but thereafter failed to canvass its objection in support of its dental. The claim of the petitioners was supported, by an affidavit. The counter contention was not supported by any evidence, including an affidavit..
175. 1 o grant relief under Section 44 of the Interim Constitution Act, in all cases falling under sub section (2) (a), it was imperative that in order to avail the jurisdiction of this Court, it was satisfied that no other adequate remedy was provided by law to redress the grievance of the party.
176. In order to satisfy the condition relating to presence of adequate remedy to redress the grievance of the petitioners, suffice it to say that the points raised in the petition, or the relief sought thereby was not available at any forum. It was alleged that the petitioners approached respondent No.1 at various levels, but their grievance was hot redressed by providing adequate remedy.
Respondent No.1, in para 4 of its written statement, also referred to writ petition "W.P. 862/90- Ourhan Ali etc, vs. Pakistan through Secretary Cabinet Division etc." in the Rawalpindi Bench of the Lahore High Court. A copy of the petition was appended with the written statement, In that petition, Qurban Ali, resident of village Sumayer, Sub-division Nagar, District Gilgit, Shahbaz Khan of Gilgit and Fida Muhammad Nashad, resident of Hussainabad, Skardu, moved the High Court of Lahore, tt its Rawalpindi Bench, and prayed for taking steps:
(i) to make enjoyment of all fundamental rights enshrined in the Constitution, available to the petitioners, and for their legal and judicial enforcement;
(ii) for electoral representation of the people of the Northern Areas in the National Assembly of Pakistan, Senate and Provincial set up; and
(iii) for enforcement of all legal rights for enjoyment by the people of the Northern Areas as they were enjoyed by all other compatriot citizens of Pakistan.
This was just to point out that the residents of the Northern Areas were deprived of their due representation in the Government, legislative bodies in Pakistan as well as Azad Jammu and Kashmir. Likewise, they were deprived of the benefits of basic human rights including all civil liberties. It was claimed that they were governed under laws not protected by the Constitution of Pakistan or Azad Jammu and Kashmir. The authorities holding the administrative control, likewise, were neither protected nor answerable under the provisions of the Constitution of Pakistan.
177. The struggle for freedom by the people of the Northern Areas was well recognised at all levels in Pakistan, Azad Jammu and Kashmir and the United Nations forum. The Northern Areas being part of the State of Jammu and Kashmir uptill their freedom from Dogra dynasty, obviously, deserved the administration and governance like their counterparts in Azad Jammu and Kashmir.
It is strange and unfortunate enough that despite lapse of 45 years, they have been deprived of representative set up of the administration as well as the basic human rights. May be that the development schemes were carried out in those areas from time to time, but mere development of the areas was no answer to civil liberties and representation in the Government and Legislative bodies. The people of these areas are Muslim. They are as much patriots to Pakistan and loyal to the liberation movement of the State, as -anybody else. Therefore, they equally deserve to enjoy the benefits and lustre of freedom.
178. Islam is cradle of dignity, honour, freedom, justice and peace in the universe. It professes equality of mankind, ideals of freedom for all human beings, human brotherhood, Muslims as an Ummah and mankind as a single Nation. Rule of law, in Muslim society, is an inalienable right.
Professor Briffault, in 'The Making of Humanity', recapitulated the ideals of freedom, brother-hood, equality and justice, as enunciated in Islam, as: 'The ideals of freedom for all human beings, of human brother-hood, of the quality of all men before the law, of democratic Government by consultation and' universal sufferage, the ideals that inspired the French Revolution and the Declaration of Rights, that guided the framing of the American Constitution and inflamed the struggle for independence in the Lalin-Amcrican countries were not inventions of the West. They find their ultimate inspiration and source in the Holy Quran.
They are the quintessence of what the intelligentsia of Mediaeval Europe acquired from Islam over a period of centuries through the various channels of Muslim Spain, Sicily, the Crusaders; and of the ideals propagated by the various societies that developed in Europe in the wake of the Crusades in imitation of the brother-hood associations of Islam. It is highly probable that, but for the Arabs, modern European civilisation would never have arisen at all, it is absolutely certain that, but for them, it would never have assumed that character which has enabled it to transcend all previous phrase of evolution."
The aforesaid analysis brings to the conclusion that the people of the Northern Areas deserved as much their share in democracy, representative government and benefits of human rights as their compatriots in Azad Jammu and Kashmir. They have been deprived of such benefits, since the enforcement of fundamental rights and establishment of democratic Government in Azad Jammu and Kashmir, for reasons unknown. Viewed in this perspective, it is safe to hold that as the people of the Northern Areas are deprived of the basic rights and their representation in the Government and legislative bodies, they are obviously aggriev ed in all respects. As to how .Are they aggrieved and what is the required standard of being aggrieved, is to be examined in the light of juristic consensus. The true meaning and scope of an aggrieved person' was construed by this Court in Noor-ul-Amin's case, P.L.J. 1087 AJK 1 (F.B). It was observed: " Ordinarily, an aggrieved person is he who suffers a grievance by loss of any interest or right in consequence of an act or omission caused by an order, decision or action of a tribunal or authority or person. The concensus is that a person is deemed as "aggrieved person" when he satisfies that he suffered loss or the curtailment of a privilege or sight in consequence of non-performance of a duty. It is emphasised that the claimant must show any evasion or injury to his personal interest by an act or omission in order to bring his case within the purview of an aggrieved person."
In Ajaib Hussain's case, P.L.J. 1979 AJK (SC) 76, it was held: It is not necessary that a person invoking writ jurisdiction should have a juristic right. An illegal order can be assailed if it affects existing right adversely."
The aforesaid observation was made to repel the objection of the respondents as in that case the petitioner challenged the order of allotment of an open space. The objection was raised to the effect that the petitioner not having a personal right in the land in dispute, was not an aggrieved person.
In Muhammad Afzal's case, 1987 S.C.M.R. 2078, it was held: " A right considered sufficient for maintaining a constitutional petition, is not necessarily a right in the strict juristic sense but it is enough if the applicant disclosed that he had a personal interest in the performance of the legal duty which, if not performed or performed in a manner not permitted by law, could result in the loss of some personal benefit or advantage or curtailment of a privilege or liberty or franchise."
An identical view was expressed in Munawar Ali's case, P.L.D. 1975 Lahore 544. Mr. Justice Sardar Muhammad Iqbal, the learned Chief Justice at the relevant lime, made a comprehensive analysis of the term "aggrieved person" as: '' Aggrieved person - Persons though not in juristic sense having a particular right yet having "a personal interest in the performance of the legal duty which if performed in a manner not permitted by law would result in the loss of some personal benefit or advantage to . Them" - aggrieved persons."
In Inayat Bibi's case, P.L.D. 1978 Lahore 252, Mr. Justice Saad Saood Jan, the learned Judge, who spoke for the Court, assigned the significance of the term "aggrieved person" as: "Aggrieved person - Expression includes person deprived of a benefit or privilege by an illegal act or omission of a public authority notwithstanding non-violation of any legal right vested in such person."
The aforesaid consensus of judicial authorities brings the case of the petitioners within the purview of "aggrieved person" as the petitioner, admittedly were deprived of their right of franchise, representation in the Government, legislative bodies, of basic human rights and civil liberties, establishment of Courts, including High Court and Supreme Court, in addition to their exclusion from the main stream of the State.
179. The aforesaid analysis leads to the conclusion that the petitioners, alongwith other residents of the Northern Areas, have been continuously deprived of their basic rights and the right of representation in the Government. Despite their best efforts at political and non-political levels, they have not been successful in securing their aforesaid rights. They are, therefore, deemed aggrieved persons as contemplated under sub-section (2) (a) of Section 44 of the Interim Constitution Act, 1974.
180. The other condition related to presence of adequate remedy for the redress of grievance of the petitioners. The term "adequate remedy" has been defined in Black's Law Dictionary as: " An "adequate remedy at law", for purposes of rule that a litigant who, fails to avail himself of a remedy provided by law and who is subsequently barred from pursuing that remedy because of his own lack of diligence cannot rely on the absence of a remedy at law as a basis for equitable jurisdiction, is one which is as complete, practical and as efficient to the ends of justice and its prompt administration as a remedy in equity, and which is obtainable as of right.
A remedy that affords complete relief with reference to the particular matter in controversy, and is appropriate to the circumstances of the case. Must reach end intended, and actually compel performance of " duty in question. Must be plain, accurate, certain, speedy, specific, and appropriate to the particular circumstances, and must also be equally as convenient, beneficial, and effective as the remedy by mandamus."
It is evident from the aforesaid significance of the term "adequate remedy" that a person vested with a right, must have a source or forum to afford him complete relief with reference to the particular matter. The scope of jurisdiction of such tribunal, authority or forum, ought to be appropriate to the circumstances of the case, in performance of its duty. Besides, the relief admissible to such person may be provided expeditiously, in accurate, specific and appropriate manner. In absence of either of the aforesaid conditions, including the presence of the tribunal, authority or forum, shall not be considered and accepted to satisfy the meaning of the term "adequate remedy".
181. A provision relating to the word "remedy" used in a statute, conveys the sense of relief available, under particular circumstances of the case, in a Court of law. In other words, when a right vested in a person is injured or eroded, there must be a forum or machinery available to such person, to enforce his right, by extinction or violence of such right. In plain words, the erosion or violation of right, must be redressed or compensated in complete sense, without undue delay or procrastination.
182. In present case, the grievance of the petitioners can be redressed:
(i) by mutual settlement at the level of the Government of Pakistan and Azad Government, including representatives of the Northern Areas; or
(ii) by invoking authority of a competent Court of law.
In the first case, it is noticed that the authorities concerned have badly failed to resolve the controversy during the last 45 years. Restoration of basic rights, representation in the Government and other national institutions, have been delayed unnecessarily, on one or the other pretext.
Despite lofty promises made by the rulers of the time, the demands of the people of the Areas have not been fulfilled. Written statement provide no satisfactory answer on this aspect.
183. In presence of the disputed position of the Northern Areas, as ------------ 1---- 1--- -*-------------------------------- ------------- -L------------------ ------------------------ 1.................................... --- f ................................. ... .................................................{{Line cut}} redress of their grievance in the courts of Pakistan. The Courts of Pakistan, under law, were also not competent to provide the desired relief to these people, These Courts have been constituted under the Constitution of Pakistan. The jurisdiction of High Courts and Supreme Court of Pakistan have been expressly confined to their respective provinces and the Federation. The territories of the Federation ol Pakistan were expressly satisfied. Therefore, keeping in view the authorities prescribed in the Constitution, neither the High Courts nor the Supreme Court of Pakistan were in a position to come to the rescue of the petitioners. The living instance is the writ petition filed by Qurban Ali and others, sub-judice in the Rawalfljndi Bench of the Lahore High Court, It was explained that the petition still awaits its disposal on the objection of jurisdiction. It is undenied that the superior Judiciary of Pakistan has invariably held that the courts of Pakistan have no jurisdiction in respect of any matter emanating from Azad Jammu and Kashmir. Here, we may cite, with approval, the authority of Lahore High Court, P.L.D. 1957 W.P. Lahore 813 (Sakhi Daler Khan's case). It was a case under the Recovery of Abducted Persons Ordinance (VII of 1949). Mst. Mumtaz Begum, who embraced Islam from Sikh religion during the war of liberation and married Sakhi Daler Khan, was recovered from village Sarsawa, Tchsil Kofli, District Mirpur, Azad Kashmir. She was arrested by the Pakistan police and delivered to the custody of the officer in-charge of a camp in Lahore established under the Ordinance. Sakhi Daler Khan, her husband, moved a habeas corpus petition under Section 491, Cr.P.C. Mr. Justice (late) Muhammad Shall, the learned Judge, set aside the detention of Mst. Mumtaz Begum as, in his opinion, Pakistan Police was incompetent to arrest and recover a person from the territories outside Pakistan. The relevant observation is reproduced: "This Ordinance applies to the Province of West Punjab (which has now merged into West Pakistan) and to such other areas as the Central Government by a special order published in the official gazette directs. Azad Kashmir is not a part of Pakistan, and. Therefore, the Government of West Pakistan or the Centre has no authority over it. The Pakistan Police, therefore, had no jurisdiction to enter into that territory and arrest a person there for detention in a camp established in any part of Pakistan. The Government of Azad Kashmir has an Act of Azad Kashmir Recovery of Abducted Persons Act, 1954. It has its own camps where the abducted persons, after they are arrested by the police officers not below the rank of Sub-Inspector or specially authorised by the Government in this behalf, are detained. If. Therefore, the Pakistan Police arrests a person in Azad Kashmir and brings that person to Pakistan then his or her detention in Pakistan will not be the "detention of abducted person in a camp in accordance with the provisions of this Ordinance". Before a person is delivered to the custody of the officer-in-charge of a camp in West Pakistan, such person must be taken into custody under and in accordance with the. Procedure laid down in the Ordinance.
Both the initial custody and the subsequent detention in a camp which are complementary to each other must in order to be legal be under the Ordinance. If initial custody is bad, then the detention which follows it will automatically be rendered bad."
The aforesaid authority explicitly laid down the rule that Azad Kashmir not being part of Pakistan, the executive or administrative authorities of Pakistan were not empowered to act beyond the territories of the Federation. We have already noticed the scope and description of the territories of the Islamic Republic of Pakistan as described in the Independence Act and the Constitution of the Islamic Republic of Pakistan of 1956, 1962 and 1973. In absence of territorial jurisdiction, therefore, superior Courts of Pakistan suffer disability in allowing relief to the residents of the Northern Areas.
Conversely, the superior Judiciary of Azad Jammu and Kashmir was vested with jurisdiction to grant relief to an aggrieved person in an appropriate manner in the light of circumstances of a case.
185. In present case, the petitioners having no other forum for the redress of their grievance, were justified to invoke the jurisdiction of this Court. On the other hand, this Court alone was competent to examine the propositions raised in the petition and to resolve them in their true perspective, within the ambit of the Interim Constitution Act. Therefore, the condition relating to absence of adequate remedy is also fulfilled in this case. Next, we pass on to the scope of direction sought to be made in the present case.
186. Section 44 of the Interim Constitution contemplated the scheme of exercise of jurisdiction conferred by the Act, by this Court. It postulated that the High Court may make an order, direction, declaration and require a person to show under what authority of law he held the office. The framers of the Act deliberately and purposely avoided to make reference to conventional writs of Certiorari, Mandamus, Quo Warranto, Prohibition, Habeas Corpus etc., as understood in England.
Article 170 of the Constitution of Pakistan, 1956, provided the scheme of writs in the manner that the High Courts were empowered to issue to any person or authority, direction, order or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, for the enforcement of rights conferred by Part II and for any other purpose. In the subsequent Constitution of 1962, however, the position was changed. In Article 98, the High Courts were conferred jurisdiction to make order, direction, declaration or to require a person in the Province holding an office to show under what authority of law he held that office. An identical scheme of authority was postulated in Article 199 of the Constitution of 1973. This is just to suggest that the scheme and nature of jurisdiction conferred on High Courts of Pakistan, was a likely incorporated in the Azad Jammu and Kashmir Interim Constitution Act, 1974."
187. The framers of the Constitution used the terms "order, direction, declaration and requiring a person holding an office to show authority under which he held the office", to enlarge the scope of jurisdiction beyond the horizons of conventional writs described above. Therefore, in issuing directions, orders and declarations, the High Court was empowered to travel beyond the contents of the traditional writs, in order to redress the grievance of citizens, in an appropriate and adequate manner.
188. Identical provisions have been made in Article 226 of the Indian Constitution, whereby High Courts are empowered to grant relief to aggrieved person by resort to issuance of order, direction or declaration, as the case may be. The scope of authority conferred on High Courts under Article 220 of the Indian Constitution was construed by Justice Das, the learned Judge of Calcutta High Court, in A.I.R. 1952 Calcutta 610, as: " Art. 226 confers on the High Court the power to issue directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. The word "including" connotes an amplification of the ordinary meaning of the expression "writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari" see 'DILWORTH v. COMMRS.
FOR LAND AND INCOME TAX', LR (1899) A.C 99 at page 105. Thus the High Court in issuing directions, orders and writs can travel beyond the content of the writs which are normally issued as writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari.
The Article also states that the directions, orders and writs can be issued for the enforcement of fundamental rights as also for any other purpose; they can be issued to any person or authority including, in appropriate cases, the Government.
The powers conferred on the Supreme Court and the High Court are extraordinary powers. The expressions used are no doubt very wide. The complexities of modern life, the extensive resort to controls, the large powers which arc delegated by modern legislations to judicial, quasi-judicial tribunals and administrative bodies and executive have necessitated the vesting of somewhat undefined powers in the superior Courts of the land, but such powers must be exercised ordinarily for the purposes for which the writs mentioned are issued and in special cases for the purpose of advancing the course of justice by enforcing rights and duties alien to those envisaged in those writs."
The Supreme Court of India applied its mind to the proposition relating to powers of High Court under Article 226 of the Indian Constitution in P.J. Irani's :asc, A.I.R. 1961 S.C. 17.11, and observed: "The High Court docs not lack power under Art. 226 to set aside an ultra vires order vitally affecting a person's right to statutory protection against eviction. Immunity from interference by the Courts could not be sought for orders which are plainly ultra vires, merely because they were passed bona fide in the sense of being without indirect motive. Particularly so when the power of the High Court under Art. 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus,etc as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well as for other purposes."
In T.K. Musaliar's case, P.L.D. 1956 Supreme Court (India) 291, the scope of jurisdiction of the High Court under Article 226, parallel to Article 170 of Pakistan Constitution of 1956, was construed as: "The jurisdiction is exercised by the High Courts in order to protect and safeguard the rights of the citizens and the High Court finds that am person within its territories is guilty of doing an act which is not authorized by law or is violative of the fundamental rights of the citizens, it exercises that jurisdiction in order to vindicate his rights."
The proposition, among others, received attention of the Supreme Court of Pakistan in Murree Brewery Company's case, P.L.D. .1972 S.C'. 279. In that case, the provisions of the Capital Development Authority Ordinance I960, were assailed. One of the objections raised by the opposite side was that remedy against the impugned action was available under Section 36 of the said Ordinance. The objection was over-ruled. It was observed: " The petitioners challenged the very jurisdiction of the Capital Development Authority to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under Section 36 would have been an exercise in futility. The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the Aggrieved party."
Applying the dictum of the Supreme Court of India and Pakistan to the circumstances of the present case, it is permissible to hold that in present case, as the petitioners have challenged the propriety of the authority administering the Northern Areas, in addition to their complaint of depriving them of fundamental rights, representation in the last 45 years, the proposition raised in the petition squarely bring the case of the petitioners within the scope of the provisions of Section 44.
189. Respondent No.1, in its written statement, has failed to explain as to why the residents of the Northern Areas were not integrated with Pakistan or with rest of the liberated territories of Azad Jammu and Kashmir. No reason has been given for failure to provide Fundamental Rights and representation to these people for the last 45 years. In absence of any positive explanation, it is permissible to assume that in view of the proximity of international boundaries of former Soviet Socialist Republic, Afghanistan and China, these areas were considered sensitive from the defence point of view. In view of its exceptional geographical location and proximity of the countries of immense supremacy, it was deemed in the national interest to avoid disturbance of status quo.
Otherwise, we are not in possession of any reasonable and just cause for denying the basic rights, including the right of representation, to these people. The international scenario has been changed in the last couple of years. The Russian aggression in Afghanistan has been repulsed and Afghanistan is blessed with its independent sovereign status. The former Soviet Socialist Republic has been split and disintegrated into various States. The neighbouring States of Central Asia have assumed their independence. Their status as such, has been acknowledged internationally, as they have become members of the United Nations. Likewise, signing of Sino-Pak Border Treaty between China and Pakistan has also dispersed the apprehension of political intervention in the Northern Areas. Therefore, under the present conditions, it is no more a sensitive region from the defence point of view. Its position is identical to the rest of Azad Jammu and Kashmir. At this stage, if there is any apprehension of threat of aggression, it is only -from across the Cease-fire Line ad that is common and identical to all the liberated territories. The responsibility of defence and security of Azad Jammu and Kashmir and Northern Areas equally rest on the shoulders of Pakistan Defence Forces. Therefore, in absence of any marginal sensitive position of either of the areas from the defence point of view, there is least justification to keep the people of Northern Areas deprived of their basic rights and detached from the main stream.
Next, we pass on to the provisions of Section 4 of the Interim Constitution Act.
190. Section 4 relate to Fundamental Rights. Sub-section (1) postulates that any law or any custom and usage having the force of law, in so far as it is inconsistent with the rights conferred by this Section, shall, to the extent of such inconsistency, be void. Sub-section (2) further provide that no law shall be made which takes away or abridges the rights so conferred and any law made in contravention of this sub-section shall, to the extent of such contravention, be void. That brings to the conclusion that:
(i) the existing laws or custom or usage having the force of law, in so far as they were inconsistent with the rights conferred under Section 4(4), to that extent, were void; and
(ii) that in future, the Legislative Assembly, the Council and the Government shall not make any law, which, in any manner, takes away or abridges the rights conferred on the State Subjects. In case such law wa^ made in contravention of the basic rights, it was void to the^ extent of (its contravention. Members of the defence services and of the forces!Entrusted with the maintenance of public order, were excluded front the aforesaid scheme of the provisions.
191. The provisions of Section 4 have been coined to reflect that fundamental rights are supreme law of the State. The right to move the High Court for appropriate proceedings for the enforcement of these rights, is equally guaranteed. Therefore, th right to move the High Court for enforcement of Fundamental Rights is deemed as a relevant right of the State Subjects.
192. The restriction and prohibition laid down under Section 4, applied to laws in the manner that no State Subject is to be deprived of life, liberty and property, save in accordance with law. Such prohibition is also applicable to other basic rights, but such rights as freedom of speech, freedom of association, freedom of movement, freedom to hold and dispose of property etc. Are subject to reasonable restrictions imposed by law. As to what is reasonable restriction, again, would depend upon the analysis made by the Court, in a given case raised before it. It is, therefore, enjoined upon this Court to uphold the fundamental rights eligible to the State Subjects under the Act, and to ensure that no law was enforced which trampled the basic rights as such.
193. The aforesaid critical analysis of the points raised in this Court, in the petition, leads to the following conclusions:
(i) (that the Northern Areas are and have been part of the State of Jammu and Kashmir, as it existed before and on August 15,1947;
(ii) that these areas have been liberated by their inhabitants, with the assistance of the State forces;
(iii) that the administrative arrangement made immediately at the time of liberation of the areas from Dogra forces, was only an ad hoc and temporary. Such arrangement was to be substituted and replaced subsequently in the light of the scheme of law enforced' in the rest of the liberated areas of the State, presently known as Azad Jammu and Kashmir;
(iv) that the Northern Areas are part of Azad Jammu and Kashmir and are to be construed and acknowledged as such;
(v) that on the formation of democratic Government on the basis of adult franchise, establishment of the Assembly, the Government and other national institutions, it was imperative to associate and attach the residents of the Northern Areas with the rest of Azad Jammu and Kashmir, by providing them adequate representation in the Government and other institutions;
(vi) that it is enjoined upon the Government to establish democratic institutions, administrative bodies and Courts of law, like other areas of Azad Jammu and Kashmir, in the Northern Areas;
(vii) that detachment of Northern Areas from the rest of Azad Jammu and Kashmir tantamount to violation of the Resolutions of the Security Council of March 30,1951 and January 24,1957;
(viii) that the Azad Government represented the whole of the State of Jammu and Kashmir. Its such status (de facto) has been acknowledged by the United Nations;
(ix) that the jurisdiction of High Court extends to all matters relevant to the affairs of Azad Jammu and Kashmir, and the State as a whole, in respect of all State Subjects, wherever they may be;
(x) that in view of the scheme of the Interim Constitution Act, the resolutions of the Security Council and the United Nations Commission for India and Pakistan, and the responsibilities assigned to and accepted by the Government of Pakistan, in connection with the defence and security of Azad Jammu and Kashmir (including Northern Areas), reflect that the Government of Pakistan is amenable to the jurisdiction of this Court; and
(xi) that the State Subjects residing in the Northern Areas have been deprived of the benefits of fundamental rights, enshrined in the Interim Constitution Act, during past, without lawful authority.
These rights are admissible and exercisable by them in the manner and style as they are being enjoyed by their compatriots in Azad Kashmir.
194. The conclusion listed in (i), (ii), (iii), (iv) and (v) of the preceding paragraph, find no answer in the written statement of respondent No.1. In paragraph 9 of written statement, it is admitted as true that the Northern Areas do not form part of the territories of Pakistan as defined in the Constitution of 1973. However, it is explained on account of that omission, it may not be concluded that the said areas are part of the territories of Azad Jammu and Kashmir. The explanation is self-contradictory.
When it is accepted that these areas are not part of Pakistan, then it does not lie in the mouth of the respondent to deny the geographical status of the areas for their being part of the liberated areas of the State. Be that as it may, the fact remains that these areas are admittedly not part of Pakistan. Likewise, the respondent has failed to explain as to why the residents of these areas may be kept deprived of the benefits of fundamental rights, civil liberties and right of their representation in the Government and other national institutions. In absence of an express answer to the averment, it has to^be believed that the respondent has impliedly admitted the claim of the petitioners in that respect.
195. It may not be out of place to state here that the respondent was unable to satisfy its validity to keep its exclusive control by detaching these areas from the rest of Azad Jammu and Kashmir. No answer was provided as to why the provisions of the Interim Constitution Act and other laws enforced in Azad Jammu and Kashmir may not be extended to these areas.
Next, we pass on to the effect of omission to extend the provisions of the Interim Constitution Act and other laws to the Northern Areas.
196. We are not in possession of list of laws applied in the Northern Areas at the moment, but suffice it to say that so far as those laws are inconsistent with the provisions of Section 4 of the Act, they are void. Here, we would like to observe that the finding shall have no effect to past and closed transactions under such laws, It is considered that no useful purpose would be served by reopening the closed transactions, by virtue of the orders passed or actions taken, by the administration, by this lime. We find support of this view from the dictum of the Supreme Court of Pakistan in Asma Jilani's case, P.L.D. 1972 Supreme Court 139. Mr. Justice Hamoodur Rehman, the celebrated Chief Justice of Pakistan, while repelling the contention of the learned Attorney General of Pakistan, made a critical analysis of various authorities cited at the bar, and observed: " I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization.
Applying this test I would condone (1) all transactions which are past and closed, for no useful purpose can be served by reopening them,
(2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1954. 1 would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity.
To appreciate further the scope of effect of the provisions of Section 4 of the Act, we may refer to a celebrated judgment of the Supreme Court of Azad ammu and Kashmir in Kashmir Timber.
Corporation's case, P.L.J. 1980 AJK (SC)
12. In that case, the petitioners challenged the vires of the provisions of Timber Trade (Nationalisation) Ordinance/Act of 1976. By virtue of the provisions of Sections 3, 4, 5 and 6 of the Act, the Government assumed its authority to take over custody of all timber, in whatever shape, from the custody of the lessees, who secured leases of forests in Azad Jammu and Kashmir, prior to enforcement of the Act. On expounding the relevant provisions of the Interim Constitution the relevant provisions of the Interim Constitution Act, one of the leading observations of the Court pertained to law enforced in contravention to the provisions of the Act.
The relevant observation is: "If the impugned Act is within the legislative competence of the Assembly and it violates no express condition or restriction by which that power is limited, it will not be for the Court to inquire any further. But, if the Act violates and constitutional restriction or limitation, it is invalid, and the Court being the protector and the custodian of the Constitution, is under an obligation to strike it down.
This is especially true as regards the 'Fundamental Rights' as to which the Superior Courts have been assigned the role of sentinel on the qui vive. While the Courts should naturally attach great weight to the legislative judgment, they should not desert their own duty to determine finally the constitutionality of an impugned statute."
The aforesaid dictum of the Supreme Court provide a guide-line to hold that any. Law in existence or enforced, so far as it is found inconsistent and in contravention to the provisions of Section 4 of the Constitution, shall be void. On this premises, it is held that all laws presently enforced in the Northern Areas, which are inconsistent and in contravention of the provisions of Section 4, relating to Fundamental Rights, enjoyable by the residents of the Northern Areas, arc declared void.
Here, it is relevant to dispose of the final objection raised by the learned Deputy Attorney General, to the effect that the term "person" used in Section 44 of the Act, for issuance of direction or order, precluded the Government of Pakistan. It was emphasised that no writ can be issued to the Government within the purview of the aforesaid provisions.
197. Among others, the petitioners have prayed for grant of relief relating to restoration of Fundamental Rights. In clause (e) of the relief claimed, it was averred that the Court may kindly grant the relief to take all those steps which are necessary for the purpose of enjoyment of constitutional rights by the State Subjects of the northern areas of the State. In our estimation, this is the primary relief desired by the petitioners, as all other reliefs follow it. Clause (c) of subsection
(2) of Section 44 of the Act is relevant to the proposition, It postulate that on the application of any aggrieved person, the Court may 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.
198. The language used in clause (c) purports to confer jurisdiction on the High Court to ensure enforcement of fundamental rights contained under the Act, in an appropriate manner, by making an order or giving direction to the person or authority, including the Council and the Government.
Here, the term "person or authority" has been described to include the Council and the Government. This is just to suggest that reference to the term "person" in the earlier part of the provisions has been used by the framers of the Constitution in a very comprehensive manner so as to include both the Council and the Government. The term "person" has been defined in sub- section (5) of Section 44. It is provided that the term "person" includes anybody politic or corporate, any authority of or under control of the Council or the Government and any court or tribunal other than the High Court and the High Court, or a court of tribunal relating to Defence Services. The term "person" has been construed in Corpus Juris Secundum, volume 70, at page 686, as: "PERSON. The English word "person" derives from the Latin "persona", and it originally meant mask. It is a broad, and ambiguous word, in legal usage a generic term, and by itself it is an equivocal word requiring interpretation. Like many other words, it has no fixed and rigid signification; it has many different meanings dependent on contemporary condftions, the connection in which it is used, and the result intended to be accomplished, and the sense in which it is used in any particular instance may often be ascertained from the context and intent with which it is employed."
It is clear from the aforesaid description of the meaning of the word "person" that it is used in a broad and wider sense, in view of the dependent contemporary conditions and the connection in which it is used, in order to accomplish the sense in a particular matter. The term "person" in relation to a foreign Government, was construed in Black's Law Dictionary, 5th edition, at page 1028, as: "Foreign governments otherwise eligible to sue in U.S. Courts are "persons" entitled to bring treble- damage suit for alleged anti-trust violations under Clayton Act."
The term "body politic" was also defined in the Black's Law Dictionary, at page 159, as: "A social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. Also a term applied to a municipal corporation, school district, country or city, State or nation or public associations."
We have examined the meaning of the term "body politic" as it refers to the scope of the meaning and definition of the term "person" under Section 2 of the Act. The aforesaid meaning of the term "person", therefore, has been used in the Act, with a broad and wide* object, even to include the Government and the Council, including the Government of Pakistan.
199. 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 reflect 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 moreso in respect of enforcement of the fundamental rights as provided under clause (c) of sub-section
(2) of Section 44 of the Act.
2(X). The other part of the provisions of clause (c) relate to the sphere of enforcement of fundamental rights, It envisage that the Court may make an order or issue direction for the enforcement of any of the fundamental rights to a person (including the Council and the Government) exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir. Two spheres have been incorporated in clause (c) for enforcement of fundamental rights. Firstly, order or direction is to issue to the person who exercises power or performs functions in Azad Jammu and Kashmir. The other area pertains to performance of functions or exercise of power in relation to Azad Jammu and Kashmir. The distinction is quite relevant as it covers the scheme of the Interim Constitution Act as a whole, and the functions performed by various authorities, including the Government, the Council and the Government of Pakistan.
201. The other limb of the objection is that a writ of Quo Warranto may not be issued to the Government of Pakistan, in view of the circumstances of the case. The objection is unsustainable, in view of the circumstances of the present case, as enumerated in detail in the earlier part of this order. The fact of V- matter is that under the Act, this Court has been conferred jurisdiction to issue orders, directions or make declaration, as the case may be. The restrictions which apply to conventional writs of England, as noticed earlier, cannot be enforced within the purview of the provisions of the Act. At the best, the Court has to satisfy itself that the conditions relating to issuance of order, direction or declaration are well satisfied. On satisfaction of such conditions, the Court is empowered to issue an appropriate order or direction or make a declaration, as the case may be. An identical objection was raised in Muhammad A. Hayat's case, P.L.D. 1962 Supreme Court
28. In that case, the circumstances raised in the petition, brought the case of the petitioner within the ambit of writ of mandamus. Leave was granted to consider the limited question, whether mandamus could be issued against the Government at all. Mr Justice Kaikais, the celebrated Judge of the time, who spoke for the Court, on critical analysis of various British authorities and the provisions of Article 170 of the Constitution, arrived at the conclusion: " On the fact that in England a mandamus cannot issue to the Crown no argument can be based that it cannot issue to the Government of this country. The constitutional status of the Crown is wholly different from that of the Government of Pakistan. The Crown of England occupies a unique position. As stated in Dicey's Law of the Constitution, it is a fundamental rule of English Law that no action can be brought against the Crown. No process of any kind can be issued by the Courts against the Crown. Another recognised principle is that: 'The Crown can do no wrong". The Crown is not responsible for its acts to anybody or authority and no legal right can be said to exist in any person against the Crown.
Nothing of what is stated above applies to the Government of this country. The Government is a creature of law with limited 'and defined powers. Its acts in relation to the citizens of the State are subject to scrutiny and control by the Courts. It is burdened with legal duties in favour of the citizen which can be enforced in a Court of law. If it acts in excess of its powers the Courts can grant appropriate relief, and if it fails to perform its duties it can be obliged to perform them. Even a Civil Court of the lowest jurisdiction can issue an injunction to the Government to perform the duties imposed on it by law.
The criterion for deciding whether a public authority is subject to a mandamus would be whether it had a legal duty to perform and a legal right existed in any person to have that duty enforced.
Although the Crown in England is not subject to writ jurisdiction, all public authorities even though they be servants of the Crown or functionaries of the executive government are subject to such jurisdiction, and mandamus can be issued against Ministers or other v Crown servants to enforce statutory duties...."
The proposition received attention of the Supreme Court of Pakistan in Masudul Hassan's case, P.L.D. 1963 S.C. 203. Mr. Justice Cornelius, the learned Chief Justice, answered the proposition, by quoting Halsbury, as: " At the same time, the issue of a writ of quo warranto is discretionary with the Court. It is not a writ of right. Thus, where- "the title to a corporate office was in question, the Court,... Would not grant leave, to a relator to file a quo warranto information as a matter of course simply because a reasonable doubt as to the legal validity of the title was shown, but the Court would take into consideration the consequences which would be likely to follow should the information be granted, and also all the circumstances of the application."
The objection under consideration was examined* once again, by the Supreme Court of Pakistan in Mehr Din's case, P.L.D. 1970 Supreme Court 311. It was held: " Short of amending the Constitution by an Act of Central Legislature passed by the votes of not less than two-thirds of the total number of the members of the National Assembly as laid down in Article 209 no law could divest the High Court of the jurisdiction to give directions to a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which is not permitted by law to do and to declare that any act done or proceeding taken by any one of the said persons has been done or taken without lawful authority and is of no legal effect."
202. It is, therefore, not right to suggest that no declaration and direction in the shape of quo warranto may be made against the Government of Pakistan. All that is required is the satisfaction of legitimate authority to do an act, in accordance with law.
203. The State of Jammu and Kashmir is presently divided by the Cease- Fire Line. It is well acknowledged that the sovereignty of the Slate vest in the State Subjects, who unequivocally uphold and respect the entity of the State. They arc engaged in earnest pursuit of freedom from the obdurate, aggressive Indian Union. The cherished goal of their liberty is, prima facie, to be attained through the acknowledged democratic method of fair and free plebiscite, under the auspices of the United Nations. Until the status of the State is determined, in order to run the administration of liberated territories, Interim Constitution Act, 1974, with approval, has been enforced. All the authorities entrusted with different assignments and functions arc enjoined to act in compliance with the provisions of the Act. We have recapitulated the detailed history of the Northern Areas, their legal status and the circumstances surrounding the present position. We.
Therefore, hold that no legitimate cause has been shown bv the respondents No. 1 and 2, to keep the Northern Areas and their residents (State Subjects) detached /from Azad Jammu and Kashmir, under separate and arbitrary administrative system and deprive them of fundamental rights.
204. We accordingly accept the petition and direct: h (i) (a) the Azad Government to immediately assume the administrative ' control of the Northern Areas and to annext it with the administration of Azad Jammu and Kashmir;
(b) the Government of Pakistan to provide an adequate assistance and facility to the Azad Government in attainment of the said objective.
(ii) the residents (State Subjects) of the Northern Areas shall enjoy the benefit of the fundamental rights conferred by the Act, 1974. They shall he provided representation in:
(i) the Government;
(ii) the Assembly;
(iii) the Council;
(iv) the Civil Services; and
(v) other national institutions, in due course of law.
(iii) Azad Government shall take steps to establish administrative and judicial set up in the Northern Areas within the framework of the Interim Constitution Act.