' The petition is moved under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, to issue direction to respondents to refrain from pushing back or sending the petitioners to Indian-held Kashmir, and allowing them to reside in Muzaffarabad permanently.
2. It was averred that the petitioners are State Subjects. Petitioner No,1 originally resided in Jammu city in Mohallah Dil Pattian. He shifted his place of residence to Kashmir and resided at Javed Man7i1, Rawatpura, Baghat Burzullah, Sant Nagar, Srinagar, presently part of District Baddgam.
Petitioner No,2 is wife, petitioners Nos.3 and 4 are sons of petitioner No,1. They are one family and have travelled together on passport. They secured visa from Pakistan Embassy in New Delhi, to visit Pakistan. The visa facilities were granted on March 18, 1994, for their stay in Pakistan for 30 days.
During their stay in Pakistan, petitioners moved the Home Office for permission to stay permanently in Pakistan, by surrendering their passports. Their payer was turned down and direction was issued that they may leave Pakistan forthwith. On that, the petitioners shifted to Muzaffarabad (AK). They have decided to live in Muzaffarabad permanently. Here, again, they were denied the facilities of living here and were ordered to leave for Indian-held Kashmir, without further delay. Feeling aggrieved of the aforesaid action of the respondents, the petitioners invoked the jurisdiction of this Court and prayed that a writ may be issued in their favour against the respondents, containing the direction that the respondents may refrain from sending back the petitioners to Indian-held Kashmir and interfering in peaceful living of the petitioners in Muzaffarabad (AK).
3. The respondents, in their written statement, have repudiated the facts listed in the petition.
However, it is conceded that the petitioners entered in Pakistan on Indian passports and after that, they shifted to Azad Kashmir. It was admitted that the living conditions in Indian-held Kashmir were disturbed and difficult. It was further explained that the Government of Pakistan enjOyed the power to allow the petitioners to reside in Pakistan or Azad Kashmir.
4. It is evident from the entries in the passports of the petitioners that the place of birth of petitioner No,1 is Srinagar. Likewise, other petitioners' place of birth also is entered as Srinagar. The petitioners are inevitably State Subjects. They visited Pakistan on visa issued to them by Pakistan Embassy in New Delhi, on March 18, 1994. The duration of their stay in Pakistan was 30 days. This period has already expired.
5. It is undented that on account of intransigence of India and its obdurate attitude, the Kashmir disputes could not be settled by holding plebiscite as agreed upon in the Security Council by India, Pakistan and members of the Security Council. The UNCIP Resolutions still await their implementation in letter and spirit. These resolutions were passed in 1948 and 1949. The verdict of the Security Council was reiterated in subsequent resolutions passed from time to time whereby it was resolved that no part of the State shall be disposed of in any manner otherwise than in accordance with its resolutions and UNCIP resolutions. On account of India's intransigence, the people of Indian-held part of Jammu and Kashmir fell frustrated and they resorted to peaceful agitation in support of their vested and promised right of self-determination, to settle their future statute. They organised peaceful demonstrations, public meetings and processions. They also adverted to strikes, to demonstrate their resentment against India's forcible occupation and usurpation of the State. Their peaceful agitation was sought to be crushed by use of Force. There was retaliation against the use of brute force of the Indian Security Forces. This has led the present mass uprise in Kashmir. To suppress the popular uprise in Kashmir, the Government of India and its Security Forces have resorted to genocides, gang-raps, incarceration of Kashmiri people. Thus, inhuman atrocities being perpetuated by Indian Security Forces have created war-like conditions in Indian-held Kashmir, the civil administration has been replaced by Presidential rule for the last more than 4 years. In fact, there is complete lawlessness, chaos and anarchy in Indian-held Kashmir. Under the laws like TADA and PDA, the Indian Army has gained free hand in repelling the political uprise. Under the conditions described above, the petitioners genuinely apprehend insecurity and lack of safety. Their lives obviously would be in danger and exposed to Indian oppression. Thus, the allegations listed in the petition, find ample proof in their support.
6. It is well established from the evidence placed on record that the petitioners are citizens of the State of Jammu and Kashmir. By virtue of their status as citizens of the State, they are vested with the right to move and travel throughout the State, without hindrance and restriction. Likewise, they are vested with the valid right to reside anywhere or in any part of the State, including Azad Jammu and Kashmir. This right is vested in the petitioners by virtue of laws of the State in force in both parts, across the Cease-fire line.
7. The UNCIP and Security Council Resolutions acknowledged the status of the State of Jammu and Kashmir as one entity. However, for the purpose of maintenance of peace, it has been emphasized that the forces of both the countries (India and Pakistan) shall maintain the Cease-fire line till the plebiscite is held and the future of the State is family determined by its people in exercise of their right of self-determination. These resolutions place no embargo or bar on the travelling and movement of the citizens of the State to its any part or area. The Truce Agreement made between India and Pakistan by virtue of Security Council Resolutions, was enforced on January 1, 1949. This agreement again postulates terms and conditions which confine to maintenance of peace on the Cease-fire line. The Truce Agreement described no restriction or prohibitions on the movement and travelling of State Subjects to all areas of the State. The fact of the matter is that State Subjects travelled on both sides of the Cease-fire line, by crossing it at different points, without any restriction or hindrance. It was after the encounter of 1965 that the movement and travelling facilities were restricted and controlled by force on both sides of the Cease-fire line. Thus the fact remains that these restrictions and prohibitions have no force of local laws and UNCIP Resolutions, in their support. Thus, crossing of Cease-fire line by State Subjects was not deemed violation of law, as an offence.
8. In the present case, since the petitioners are legitimate State citizens, they are free to choose their place of residence in Indian-held part of Kashmir or in Azad Kashmir. Under Law, they cannot be forced to go back to Kashmir, notwithstanding the fact that they have travelled to Pakistan and Azad Kashmir on Indian passports and Pakistan visa. The mode of travelling by itself does not place an embargo or bar on the vested right of the petitioners. They are free to reside in Azad Kashmir.
9. It is correct that the discretion vasts in Home Offices Pakistan, to allow a family to reside in Pakistan but under law, the Pakistan Home Office is not empowered to refuse the State citizens to stay or reside in Azad Kashmir, notwithstanding their travelling on Indian passports. The authority in Azad Kashmir vests in Azad Kashmir Government and not in Pakistan Home Office. Since the Prime Minister of Azad Kashmir Government has supported the petitioners vide his letter of June 1, 1994 and administrative authorities have nothing to say against the petitioners, they cannot be denied their stay Azad Kashmir.
10. The petition is, therefore, accepted. The respondents are directed to refrain from departing or sending back the petitioners to Indian-held Kashmir or forcing or directing them to leave Azad Kashmir, without due course of law. A writ to that affect is, therefore, issued. No order as to costs.