1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above entitled appeals have arisen out of the single judgment of the High Court, we propose to dispose of the same by this single judgment.
2. ' The brief facts giving rise to the above entitled appeals are that different cases at different Police Stations in Pakistan were registered against Raja Nisar Ahmad, Muhammad Pervez and Muhammad Shafi, respondents herein.
3. ' Raja Nisar Ahmad filed a writ petition alleging that a false case was registered against him with regard to the purchase of a bus under section 406/420, P.P.C., at Police Station, Kahuta, Rawalpindi, and the Police Authorities in Azad Kashmir were intending to arrest and hand over him to Pakistan Police in pursuance of an Act known as Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984 (hereinafter shall be called the Extradition Act, 1984). He challenged the validity of the said Act on the ground that the same was an Ordinance which Gen. Zia-ul-Haq, the late President of Pakistan, could not promulgate. In alternative, it was also averred that as none of the elements necessary for constituting the Azad Jammu and Kashmir Council (hereinafter shall be called the Council) as defined under section 21 of the Interim Constitution Act, 1974 (hereinafter shall be called Constitution Act) was present, the Council could not be constituted and no legislation could be made by it. Thus, a writ of mandamus was sought against the appellants, herein, which was in terms that they should not arrest and hand him over to the Pakistan Authorities.
4. ' Muhammad Pervaiz, respondent, filed a writ petition in the High Court alleging that a false case had been registered against him under sections 436, 423, 427, P.P.C., at Police Station, Jhelum, and the authorities arrayed as respondents in the writ petition were after his arrest. He challenged the validity of Extradition Act, 1984 on the'ground that as no elected members of the Council existed at the relevant time, the said Act could not be passed by the Council as such it was void. He prayed that the said Act may be declared as void and also sought a writ against the appellants Nos.2 and 3, herein, not to arrest him and extradite him to Pakistan.
5. ' Muhammad Shafi, respondent, filed an application under section 491, Cr.P.C., that there was no case against him; and he was being kept in illegal confinement in Mirpur Jail without any legal justification. Thus, he prayed for his release. Subsequently, he also filed a writ petition under section 44 of the Constitution Act, 1974 in the High Court alleging that a false case had been registered against him under sections 3/4, 8/14/21, D.DA., in Pakistan and, thus, he was arrested by the District Magistrate and Superintendent of Police, Mirpur, at the instance of Pakistan Police and was being confined in the District Jail, Mirpur. It was further alleged that he was being handed over to Pakistan Authorities in pursuance of Extradition Act, 1984 which was void because the competent authority to make the said Act was the Council, but as at the relevant time no elected members of the Council were 'present', the Council being incomplete could not legislate the said Act. He sought a declaration to the effect that the Act was void and also prayed for a temporary injunction that the appellants, herein, should be restrained from handing him over to the Narcotics Police at Islamabad. The High Court disposed of the writ petitions filed by Raja Nisar Ahmad and Muhammad Pervaiz, and the application filed by Muhammad Shafi under section 491, Cr.P.C.
6. Through a. Consolidated judgment holding that as at the relevant time the Council stipulated under section 21 of the Constitution Act did not exist, the Extradition Act, 1984 could not be passed and was, thus, void. However, the writ petition filed by Muhammad Shafi under section 44 of the Interim Constitution Act, 1974 was still at the stage of service of notice to the Council. The perusal of last order passed in the writ petition filed by Muhammad Shafi on 19-10-1994 shows that the Chairman of the Council has yet to be served; no written statement has yet been filed by any of the respondents in the said writ petition. However, in the appeal filed by the Chairman of the Council against the order passed on application under section 491, Cr.P.C., instead of filing the copy of the application filed under section 491, Cr.P.C., the counsel for the appellant filed the copy of the writ petition filed by Muhammad Shafi probably under the impression that writ petition filed by Muhammad Shafi had been disposed of, whereas in fact only application under section 491, Cr.P.C., was disposed of by the High Court through impugned judgment and not the writ petition. None of the parties during the course of arguments drew our attention to this fact and the arguments were addressed as if the writ petition filed by Muhammad Shafi had also been disposed of by the High Court. When the record was called for by this Court, the High Court not only transmitted the record of application filed by Muhammad Shafi under section 491, Cr.P.C., but also sent the record which pertained to the writ petition filed by Muhammad Shafi which was still pending before it.
7. ' So far as the writ petition filed by Raja Nisar Ahmad is concerned, Ch. Mansab Dad, Advocate, filed written statement on behalf of respondents Nos.7 to 9 which include the Council, but there is no `Vakalatnama' or other document on the record empowering Ch. Mansab Dad to act or plead on behalf. Of Council. Evidently, the written statement filed by him on behalf of the Council is without any authority. The only writ petition which was complete and could be disposed of by the High Court was the writ petition filed by Muhammad Pervaiz, respondent herein. The aforesaid illegalities came to our notice while we were studying the files for resolving other questions involved. No arguments were addressed on the above reflected points. We would advert to this aspect of the case at the later stage of the judgment.
8. ' We have heard the arguments. Mr. Umer Mahmood Kasuri, Advocate, the learned counsel for the appellants, has traced out the history of the amendment of the Constitution Act, whereby section 53-A was inserted. He has drawn our attention to the agreement which was entered between the heads of the major political parties of Azad Jammu and Kashmir and General Muhammad Zia-ul- Haq, CMLA, on 6-8-1997. One of the stipulation in the agreement was that the Council would be dissolved and executive authority of the Council would be exercised by the President of the Pakistan. Consequently, some amendments were made in the Constitution Act and a proclamation was issued on 11th August, 1977 by the then President of Azad Jammu and Kashmir whereby six elected members of the Council ceased to exist. The learned counsel further submitted that the High Court has passed the impugned judgment as if General Zia-ul-Haq had imposed himself as Chairman of the Council against the will of the people of Azad Jammu and Kashmir and being a usurper he had no authority to perform legislative functions as a Chairman of the Council. The learned counsel further submitted that in view of subsection (2) of section 55 of the Constitution Act, the proclamation issued under section 53-A is immune from any challenge in any Court of law but challenge to competence of the Council to legislate is tantamount to challenge the proclamation dated 11th August, 1977 which is barred by the Constitutional amendment. The learned counsel for the appellants also submitted that neither the proclamation dated 11th August, 1977 nor section 53-A stipulated that the Council shall not be competent to legislate in the absence of the elected members.. The learned counsel took us through various provisions of the Constitution Act and argued that there is no conception of a. Constitutional Government in the State of the Jammu and Kashmir without the Council and it was for this reason that while making amendment in form of section 53-A, no provision was made that Council shall be incompetent to legislate in the absence of the elected members or it would cease to exist. The learned counsel has also argued that the Council was competent to legislate not only in absence of six elected members but it was competent to legislate even in absence of five members who were to be nominated in view of subsection (11) of section 21 of the Constitution Act. The learned counsel has strenuously argued that under aforesaid provision, the Council has the power to legislate notwithstanding any deficiency in its membership. The learned counsel submitted that unlike Legislative Assembly, there is no provision in the Constitution Act for quorum of the meeting of the council which implies that 'any vacancy' does not mean only a casual vacancy as has been held by the High Court but would mean any number of the vacancies which might be caused for any reason. Dealing with the scope of word 'any', appearing in subsection (11) of section 21, the learned counsel submitted various authorities in support of his contention that 'any' does not mean a specific number of vacancies but it can be more than one or even all the vacancies. For that he has referred to Black's Law Dictionary, Fifth Edition, wherein the meanings of the word 'any' have been given as 'some; one out of many an indefinite number'. He has also relied on the case reported as Mr. Manzur Qadir v. Mst. Amtul Hussain (PLD 1971 Lah. 537) in which it has been held that the word 'any' is to be given wide meaning and it implies all or every property and not only the property other than the one provided in the Schedule to the relevant Act. The word 'any' has also been subject of interpretation in a case reported as Ashiq Hussain Khan v. Sub-Divisional Officer, Saddar, Manghyr (AIR 1965 Pat. 446), wherein the word 'any' has been interpreted to mean all and not a specific number. The learned counsel has further submitted that according to subsection (14) of section 21 of the Constitution Act, the Prime Minister of Pakistan would include any person who for the time being performs the functions of Chief Executive of Pakistan; similarly for the purpose of section 21, the President would mean the President of Azad Jammu and Kashmir which according to the definition of the `President' given under section 2 of the Constitution Act includes a person who for the time being is acting or performing the functions of President of Azad Kashmir. Thus, according to the learned counsel for the appellants, the High Court was wrong in holding that Brig.
9. Abdur Rehman or Maj.-Gen. Muhammad Hayat Khan could not be regarded as Vice-Chairmen of the Council under section 21 of the Constitution Act. The learned counsel also submitted that under subsection (3-A) of section 21 of the Constitution Act, the Federal Minister of the State for Kashmir Affairs and Northern Affairs was an ex-officio member of the Council. Thus, according to the learned counsel, the view taken by the High Court that at the relevant time, the Council was non- existent for legislative purposes is not correct. The learned counsel for the appellant has also maintained that in view of section 34 of Constitution Act, the validity of any proceedings of the Council, Assembly or joint session, cannot be questioned in any Court. The learned counsel elaborated by arguing that the challenge to the Extradition Act, 1984 on the ground that it was not passed by the Council validly constituted is hit by the aforesaid provisions because the question as to how many members of the council were required or were present at the time of passing of the said Act falls within the ambit of the expression 'proceedings in the Council' and, thus, could not be challenged by resorting to writ jurisdiction in view of the aforesaid provisions. The learned counsel relied upon a case reported as A.M. Khan v. Government of Pakistan (PLD 1967 Lah. 227) in support of his contention wherein it has been held that expression 'proceedings of the Assembly' is inclusive of the question as to how many members voted for passing a law and, thus, a law made by the Legislature could not be challenged under section 111(1) of 1962 Constitution of Pakistan; identical view was taken in case reported as Pakistan v: Ahmad Saeed Kirmani (PLD 1958 SC (Pak.) 397). The learned counsel submitted that same expression which was used in the Constitution of Pakistan has been used in section 34 of the Constitution Act and, thus, the writ petitions filed by the respondents were not tenable and entailed dismissal on this sole ground.
10. ' In alternative, the learned counsel for the appellants has argued that in view of the proposition laid down in cases reported as Federation of Pakistan v. Moulvi Tamizuddin Khan (PLD 1955 FC 240), Reference by His Excellency the Governor-General (PLD 1955 FC 435), The State v. Dosso (PLD 1958 SC (Pak.) 533), Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657), Miss Asma Jilani v. The Government of the Punjab (PLD 1972 SC 139), Muhammad Umer Khan v. The Crown (PLD 1953 Lah.
11. 528), Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) and Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government (PLD 1990 SC (AJ&K) 23), the Extradition Act, 1984 cannot be held invalid on the principle of the 'doctrine of necessity' which has been pressed into service in all the aforesaid cases with certain modification. The learned counsel particularly referred to Miss Asma Jilani's case (PLD 1972 SC 139) and maintained that despite the fact that the learned Judges disagreed with the view taken in the case reported as The State v.
12. Dosso (PLD 1958 SC (Pak.) 533), but all the same held that the 'doctrine of legal necessity' would apply if the act done could be performed under the abrogated Constitution or it was necessary for the advancement or promotion of good of the people; it was further opined that all acts required to be done for ordinary running of the State should be condoned on the ground of 'legal necessity'.
13. The learned counsel has also drawn our attention to the case of this Court reported as Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government (PLD 1990 SC (AJ&K) 23) and submitted that this Court, despite holding that removal of Sardar Muhammad Ibrahim Khan from the office of the Presidentship was illegal, protected all acts done, appointments made, actions taken, laws framed and Ordinances issued during the period which fell between the date of his removal and the date on which the new elected President entered upon the office of the President.
14. He has also made a particular reference to a case reported as Mian Muhammad Nawaz Sharif v.
15. President of Pakistan (PLD 1993 SC 473), whereby despite the fact that the removal of Prime Minister and dissolution of Assembly were held illegal, all acts done during the relevant period were protected by the Court. The learned counsel has also referred to a book known as 'Constitutional Legitimacy' by Leslie Wolf-Phillips wherein the application of 'doctrine of necessity' has been discussed with reference to the cases decided by the superior Courts of Pakistan and some other countries. A pointed reference was made to Mustafa Ibrahim case (Cyprus) wherein the Supreme Court held that despite the fact that relevant law was made by an incompetent authority, it was protected on the 'doctrine of necessity'. The learned counsel has vehemently submitted that the High Court has totally overlooked this aspect of the case and altogether failed to consider it in the present case.
16. ' Arguing on behalf of Muhammad Shafi and Muhammad Pervaiz, respondents, Ch. Ali Muhammad, Advocate, has argued that although' the Chairman of the Council was competent to exercise the executive authority of the Council under subsection (7) of section 21 of the Constitution Act, yet he could not legislate in absence of any of the 'elements' of the Council under section 21 of the Interim Constitution Act. According to the learned counsel it is correct that there is no quorum prescribed for the meeting of the Council for the purposes of the legislation but all the same section 21 is clear to the effect that all the 'elements', namely, elected members, nominated members and the members belonging to other categories must have representation in the meeting in which a Bill is passed. The learned counsel further submitted that under section 35 of the Constitution Act, the Chairman of the Council can only authenticate a Bill passed by the council and not pass the Bill himself. The learned counsel has controverted the arguments advanced by the counsel for the appellants that the word 'any' appearing in subsection (11) of section 21 of the Interim Constitution Act should be given wider meanings and it must be interpreted to mean that law could be framed by the Council even if the elected and non-elected members are not present or non-existent. The learned counsel also submitted that it is not correct to say that as the question of validity of the Extradition Act, 1984 pertains to the 'proceedings of the Council' within the meaning of section 34 of the Interim Constitution Act, the same cannot be assailed by way of writ petition. He has argued that in the instant case, the Extradition Act purported to have been passed by the Council is challenged on the ground that it was not passed by the Council and, thus, there is no room for the argument that as the matter pertains to the 'proceedings of the Council', the same cannot be challenged in view of section 34 of the Constitution Act. Dealing with the question of 'doctrine of legal necessity', the learned counsel submitted that legal necessity, if any, existed when the council could not be constituted under section 21 of the Constitution Act, but after its constitution, an Act cannot be jusiified on the basis of said doctrine, because the impugned legislation could be passed by the council duly constituted. When the attention of the learned counsel was drawn to the fact that in view of the provisions contained in subsection (11) of section 21 of the Constitution Act, a legislation can be made even if there is deficiency in the membership of the Council, how the representation of all 'elements' of the Council is necessary, the learned counsel merely submitted that subsection (11) of section 21 refers only to a casual vacancy in the elements of the Council and not its permanent absence.
17. ' Mr. Muhammad Sharif Tariq, Advocate, appearing on behalf of Raja Nisar, respondent, more or less owned the arguments advanced by Ch. All Muhammad, Advocate, except that instead of word 'elements' in context of section 21 of the Constitution Act, he used the word 'component'. He submitted that no legislation in absence of any of the 'components' of the Council can be made.
18. The learned counsel also made a halfhearted reference to the Ordinance known as Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Ordinance, 1995 (hereinafter shall be called the Extradition Ordinance) but did not submit any detailed arguments as to what would be its effect on the present appeals, except that he made a casual reference to a case reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139).
19. ' When we were considering the record in the light of arguments advanced at the Bar, it came to our notice that Extradition Ordinance referred to above, contains all the provisions of the impugned Extradition Act, 1984 and section 7 of the Ordinance validates all the actions etc. Taken under the impugned Extradition Act, 1984. For the convenience section 7 of the Ordinance is reproduced as under:--
7. Validation.--Notwithstanding any judgment, decree or order of any Court including High Court, everything done, all actions taken, notifications issued, orders or appointments made, proceedings initiated, jurisdiction or powers exercised under the provisions of the Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984 (Act H of 1984), shall be deemed to have been validly done, taken, issued, made, initiated or exercised under this Ordinance."
20. ' Now, the question arises as to what would be the effect of the Ordinance on the present appeals. It is correct that this Ordinance was not in existence when the High Court delivered the impugned judgment but we are of the opinion that the promulgation of this Ordinance has changed the whole complexion of the present appeals. The question which, needs resolution is as to whether the appeals could be disposed of in view of the Ordinance, particularly section 7 of the same reproduced above. It may be stated here that the question as to what would be the effect of the amendment in the law during the pendency of the appeal has been the subject of various judicial authorities. In a case of this Court reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation,. Muzaffarabad (PLD 1978 SC (AJ&K) 42), the facts were that the High Court accepted some writ petitions filed on the sole ground that the Azad Jammu and Kashmir Legislative Assembly had no jurisdiction to legislate on nationalisation of timber trade because nationalisation was subject of the Council. An appeal was preferred to this Court against the aforesaid dictum of the High Court by the Government. During the pendency of the said appeal, the Constitution Act was amended with retrospective effect whereby the Legislative Assembly became competent to legislate regarding nationalisation. The amendment in the Constitution Act during the pendency of the appeal was brought to the notice of this Court. While discussing various judicial authorities on the point, this Court came to the conclusion that as the amendment in the Constitution Act was made with retrospective effect, the grounds on which the writ petitions were accepted had vanished and were not available. Consequently, the judgment of the High Court was reversed and the case was remanded to resolve other points raised in the writ petitions. When the aforesaid verdict was given by this Court in Kashmir Timber Corporation's case, authorities from Supreme Court of Pakistan were relied upon. It will not be out of place to mention here that in that case there was no validation provision as is present in the Ordinance in form of section 7. The amendment in that case was made as under:-- "3. Amendment of III Schedule (Act VIII of 1974).--In the said Act in the III Schedule, in entry (i), for the word 'Nationalization' the word `Naturalization' shall be substituted and shall be deemed always to have been so substituted."
21. It is evident that the present Ordinance is much more exhaustive as is evident from section 7 of the Extradition Act. The validating provision of the Extradition Ordinance, reproduced above, stipulates that despite any decree or order of the High Court all acts taken, notifications issued, orders or appointments made, proceedings initiated, the jurisdiction or powers exercised under the Extradition Act, 1984, shall be deemed to have been validly done, issued, made, initiated or exercised under the Ordinance. Thus, even if it is assumed for the sake of arguments that the actions taken against the petitioners-respondents were not justified under the impugned Extradition Act, 1984, after the promulgation of the Extradition Ordinance those would be deemed to have been taken under the Extradition Ordinance. This would, prima facie, mean that the concerned authority can take actions under the Ordinance and as such continue the actions already initiated under the Extradition Act, 1984. It follows that the relief given to the respondents by the High Court is no longer sustainable in view of the enactment of the Extradition Ordinance. In these circumstances, the judgment of the High Court has to be vacated as was done in Kashmir Timber Corporation's case.
22. ' However, we may clarify that the respondents or any other person may challenge the Extradition Ordinance on any available ground. In absence of any such challenge, section 7 of the Extradition Ordinance has to be given effect.
23. ' In the light of what has been stated above, we accept the appeals, set aside the judgment of the High Court and dismiss the writ petitions filed by the petitioners-respondents and the application filed under section 491, Cr.P.C. In the circumstances of the case we make no order as to the costs.