1. ' SARDAR SAID MUHAMMAD KHAN, C.J.--As the above entitled appeals arise out of the single judgment of the High Court, we propose to dispose of the same by this consolidated judgment-.
2. ' These appeals have been preferred against the judgment of the Azad Jammu and Kashmir High Court dated 8-3-1993, whereby the writ petition filed by Malik Muhammad Miskeen and others, petitioners-respondents, was accepted. The petitioners-respondents filed a writ petition in the High Court alleging that the territories known as Northern Areas formed part of Jammu and Kashmir State prior to the partition of the sub-continent. However, after the partition of the sub-continent into independent States of Pakistan and India in the year 1947, a liberation movement was launched by the people of the State in consequence of which certain territories of the State were liberated from the subjugation of Hindu Maharaja. Consequently, an independent State consisting of liberated territories known as the State of Azad Jammu and Kashmir came into existence.
3. However, the administration of the Northern Areas was handed over to the Government of Pakistan as a result of an agreement between the Government of Pakistan and the Government of Azad Jammu and Kashmir on 28th April, 1949. It has been averred by the petitioners-respondents that subsequently when the Constitutional Acts known as the Azad Jammu and Kashmir Government Act, 1970 and the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter shall be called as the Interim Constitution Act) were promulgated, the agreement dated 28th April, 1949 came to an end and, thus, the administrative control of the Northern Areas should have been given back to the Government of the State of Azad Jammu and Kashmir but it was not done so and these areas remained under the administrative control of the Government of Pakistan in violation of Constitutional provisions contained in the Interim Constitution Act, 1974. It has been further averred in the writ petition that in view of the definition of the expression 'State of Jammu and Kashmir' as given in section 2 of the Interim Constitution, Act, 1974, Northern Areas are the part of Azad Jammu and Kashmir State and, thus, a writ against the Governments of the State of Azad Jammu and Kashmir and the Pakistan was prayed for in the following terms: "(a) to order respondent No, 1 to show under what authority of law it claims to hold the territories of Jammu and Kashmir named as Northern Areas and under what authority of law does it administer those territories;
(b) to direct respondent No, 2 to take over the administration of the areas of the State and create administrative and judicial machinery therein;
(c) to arrange representation of the people of the Northern Areas in the Azad Jammu and Kashmir Legislative Assembly and Azad Jammu and Kashmir Council;
(d) to set up a Bench of the High Court and Supreme Court in the Northern Areas;
(e) to take all other steps and actions which are necessary for the purpose of enjoyment of the constitutional rights of the State subjects of the Northern Areas of the State; and
(f) any other relief that this honourable Court may deem fit and proper may also be granted."
4. ' The High Court accepted the writ petition vide impugned judgment and issued writ in the following terms-- "We accordingly accept the petition and direct--
(i) (a) the Azad Government to immediately assume the administrative control of the Northern Areas and to annex 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 be 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."
5. ' The Government of the State of Azad Jammu and Kashmir and the Federation of Pakistan have assailed the impugned judgment of the High Court through separate appeals. The Federation of Pakistan challenges the jurisdiction of the High Court to issue writ prayed for on the ground that the jurisdiction of the High Court was limited to the territory known as Azad Jammu and Kashmir State which does not include Northern Areas and that even otherwise, a writ against the Government of Pakistan could not be issued because it was not amenable to the jurisdiction of Azad Jammu and Kashmir High Court. It has been further contended in memorandum of appeal that the points canvassed by the respondents, herein, are of political nature and as such were not germane to the writ jurisdiction of the High Court. In para. 4 of the memorandum of the writ petition it was averred that the administrative control of the areas was handed over to the Government of Pakistan as a result of an agreement dated 28-4-1949 but it ceased to exist after the promulgation of the Interim Constitution Act, 1974. It has been stated in para. 9 of the written statement filed on behalf of Federation of Pakistan that although the Northern Areas do not form part of the territories of Pakistan as defined in Article 1 of the Constitution of Pakistan yet it did not imply that these areas were included in Azad Jammu and Kashmir as defined under section 2 of the Interim Constitution Act, 1974.
6. ' A preliminary objection has been raised in the written statement that the people of Northern Areas claim the said areas to be a part of Pakistan and seek their representation in the Senate and National Assembly of Pakistan; they have instituted a writ petition in the Rawalpindi Bench of Lahore High Court for the redress of their grievance but neither the members of the Council of the Northern Areas nor the petitioners in the writ petition filed in the Rawalpindi Bench of Lahore High Court were arrayed as parties in the instant writ petition and, thus, it was incompetent. It may be observed that the Government of Pakistan did not deny the averment made in the writ petition that before partition of sub-continent, the Northern Areas were part of the State of Jammu and Kashmir.
7. ' The President of All Jammu and Kashmir Muslim Conference, in his written statement, admitted para. 4 of the writ petition wherein it was alleged that the administrative control of the Northern Areas was given in the control of the Government of Pakistan in pursuance of agreement dated 28-4-1949; it has been also stated in para. 4 of the written statement that after the enforcement of Azad Jammu and Kashmir Government Act, 1970 and the Interim Constitution Act, 1974, the administrative control over the Northern Areas vests in Azad Jammu and Kashmir Government and, as such, the administration of the said areas should have been handed over to the Azad Jammu and Kashmir Government because the agreement dated 28-4-1949 came to an end as a result of the promulgation of the said Constitutional Acts.
8. ' The Government of Azad Jammu and Kashmir filed separate objections/written statement in the High Court wherein it has been stated that Northern Areas are historically a part of the Azad Jammu and Kashmir State and the administration of the said areas was being run by the Government of Pakistan in pursuance of agreement entered between the Government of Pakistan and Azad Jammu and Kashmir Government of 28-4-1949. However, the impugned judgment of the High Court has been challenged by the Government of Azad Jammu and Kashmir by filing appeal to this Court on the ground that the High Court had no jurisdiction in the matter because the parties were not amenable to the jurisdiction of the Azad Jammu and Kashmir High Court.
9. ' A preliminary objection has been raised by Raja .Muhammad Hanif Khan, Advocate for Muhammad Miskeen and others, respondents, that the appeal filed on behalf of the Federation of Pakistan is incompetent because that was not properly instituted. According to the learned counsel the petition for leave to appeal filed by Ch. Fazal-t-Hussain, Advocate, on behalf of Federation of Pakistan was not competent as he was not authorised to do so by Law and Justice Division, Government of Pakistan, as envisaged under Rules of Business framed under the Constitution of Pakistan; and that the power of attorney in favour of Ch. Fazal-e-Hussain, on the basis of which the petition for leave to appeal was filed in this Court, signed by Ahmed Sadiq, the then Secretary to the Kashmir Affairs and Northern Affairs Division, was violative of law because he was not competent to sign the power of attorney in view of the provisions contained in the relevant Rules of Business. It may be stated, that according to Schedule II to the Rules of Business, under Serial No,22, item 7, Legal proceedings and litigation concerning the Federal Government, is the subject of Law and Justice Division. During the course of arguments Ch. Fazal-e-Hussain, the learned counsel for Federation of Pakistan, has contended that he was duly appointed to act on behalf of Federation of Pakistan by the Law and Justice Division and, thus, the preliminary objection raised by Raja Muhammad Hanif Khan, the learned counsel for the respondents, has no substance. He was directed to place on record the relevant copies of documents showing that he was authorized by the Law and Justice Division to act on behalf of the Federation of Pakistan in the instant case. Thus, he subsequently placed on record the copies of number of documents showing that in fact he was appointed by the Law and Justice Division to act on behalf of Federation of Pakistan in the instant case and was also paid fees by the said Division. The relevant letter dated 5th April, 1993 written by the Law and Justice Division to the Ministry of Kashmir Affairs and Northern Affairs Division shows that in fact Ch. Fazal-e-Hussain, Advocate, was duly appointed advocate on record by Law and Justice Division.
10. ' Under rule 7 of Rules of Business, 1973 read with Schedule IV, the list of officers who are authorised to make and execute the orders and other instruments in the name of President had been given.
11. For the sake of convenience, the relevant part of the Schedule is reproduced as under:-- "List of officers authorised to make and execute orders and other instruments in the name of the President:
1. Secretary, Special Secretary, Acting Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Government of Pakistan or to the Cabinet or Section Officer or an officer who is granted one of these ranks ex officio, or an Officer on Special Duty authorised by the Division concerned."
12. It is evident from the perusal of the abovementioned provision that Section Officer, who had signed the letter dated 5th April, 1993, reproduced above, is also authorised to authenticate an order or instrument etc. However, it is also pertinent to point out that it has nowhere been envisaged in the Schedule that authentication of an order could be made only by the Secretary or Section Officer etc. To the Division to which the business is concerned. Although the expression or an Officer on Special Duty authorised by the Division concerned appears towards the end of the abovementioned provision of the Schedule yet as the said expression appears after the 'comma' and the word 'or', words 'Division concerned' do not qualify the earlier part of the expressions containing the words Secretary, Section Officer etc. This implies that concerned officers need not necessarily belong to the Division with which a particular business is concerned. In other words on the plain construction of Schedule IV to the Rules of Business, it cannot be said that order issued by the Federal Government should be necessarily authenticated only by the competent officer of the concerned Division and not by an officer of equal status of other Division, especially so when the matter pertains to more than one Division as stipulated under Rule 8 of the Rules of Business.
13. Besides, there is no other provision in the aforesaid Rules of Business making it obligatory that the authentication of an order is to be made only by the officer of the Division concerned. However, even if it is assumed that the Secretary and other officers enumerated in item 1 of Schedule IV to the Rules of Business means Secretary etc. Of the Division to which a particular business is concerned, it would not make any difference in the instant case because the letter dated 5th April, 1993 whereby Ch Fazal-e-Hussain was engaged as counsel, has been, signed by the Section Officer of Law and Justice Division. Only the `Vakalatnama' was signed by Ahmed Sadiq, the Secretary of the Kashmir Affairs and Northern Affairs Division. It has already been stated that as the matter also pertained to the Kashmir Affairs and Northern Affairs Division, under Rule 8 of the Rules of Business, the consultation between Law and Justice Division and the Kashmir Affairs and Northern Affairs Division was necessary which was duly made. As is evident from the letter dated 5- 4-1993, Ch. Fazal-e-Hussain, Advocate was appointed counsel for Federation of Pakistan by the Law and Justice Division at the instance of Kashmir Affairs and Northern Affairs Divisions whose Secretary of the time, Mr. Ahmad Sadiq, signed the power of attorney in favour of Ch. Fazal-e- Hussain. Raja Muhammad Hanif Khan, the learned counsel for the respondent, did not specifically mention in the concise statement as to who was competent to sign the `Vakalatnama' on behalf of Federation of Pakistan. However, during the course of arguments, he contended that it should have been signed by any of the competent Officers of Law and Justice Division and not by the Secretary of Kashmir Affairs and Northern Affairs Division as has been done in the instant case. Even if it is assumed for the sake of argument that as the subject of litigation between Federal Government and any other Division belonged to D Law and Justice Division, the `Vakalatnama' should have also been signed by a competent officer of the said Division, it is merely an irregularity which is not fatal to the appeal filed on behalf of the Federation of Pakistan, especially so when the authority of Ch. Fazal-e-Hussain, Advocate, to file appeal is not challenged by the Federation of Pakistan, rather the same is owned.
14. ' Raja Muhammad Hanif Khan, the learned counsel for the respondent, has relied upon the analogy of Rule 34 of Manual known as Azad Jammu and Kashmir Law Department Manual of 1984 which was issued by the President of Azad Jammu and Kashmir in exercise of powers vested in him under section 58 of the Interim Constitution Act, 1974. The aforesaid Manual contains the provisions corresponding to the provisions contained in the Rules of Business of Pakistan, referred to above and, thus, it is not necessary to make a comparative analysis of the two sets of Rules. A reference may be made to the following authorities in support of the view that even if it is held that Ahmad Sadiq who was Secretary of Kashmir Affairs and Northern Areas Division at the relevant time was not competent to sign the `Vakalatnama', that is not fatal to the institution of the appeal.
15. ' In Muhammad Sarwar v. Abdul Ghani (1980 CLC 946), the "Vakalatnama' was not signed by the appellant; it was held that the purpose of provision contained in Order III, Rule 1 and Order XLI, Rul.e 1, is to avoid the possibility of confusion, fraud or exploitation and making sure that no harm is caused to genuine party. Thus, if a lawyer acting on the instrument of his client files an appeal, the absence of authority in writing would not render the institution of the appeal as invalid.
16. ' In Khyam Films v. Bank of Bahawalpur Ltd. (1982 CLC 1275), it was .Opined that the question as to whether the suit was validly instituted can be effectively challenged only by the principal. The principal in spite of objection taken continued to recognise the authority of the agent to institute the suit. The act of the principal was held amounting to ratification and the suit was held to have been validly instituted.
17. ' In Messrs Nabi Bakhsh & Sons v. Pakistan (PLD 1969 Kar. 210), it has been held that presentation of application by the pleader to whom authority under Order III, rule 4, was not given, was merely irregularity and is curable at a subsequent stage. The counsel was on the panel of counsel for the Government of Pakistan and he had acted on the letters written by the Government instead of a power of attorney, properly executed.
18. ' In Raghunath Devi v. Administrator, Srinagar Municipality (AIR 1962 J&K 83), it was held that the provisions contained in rule 4, Order III, are directory in nature and if a pleader makes an application with the consent of the party and subsequently files a formal `vakalatnama' that will not invalidate the presentation of the application under Order 9, Rule 3.
19. ' Besides, in a case decided by this Court and reported as Muhammad Riaz Khan v. Sardar Rahim Dad Khan PLD 1990 SC (AJ&K) 13, it was opined as under:-- "14. Now the question which needs to be resolved is as to whether the institution of the suit on the basis of a forged `Vakalatnama' can be regarded as valid on the ground that the said act stands ratified by the appellant within the meanings of section 196 of the Contract Act, as has been contended on behalf of the appellant. There is no quarrel with the proposition that under section 1% of the Contract Act, a contract which has been entered into by a person on behalf of other without his knowledge or authority can be ratified by the principal... ... .............
20. It has already been stated here that in the instant case Federation of Pakistan owns Ch. Fazal-e- Hussain as its counsel. So the principle enunciated in the aforesaid authorities is fully, applicable to the case in hand. Consequently, the preliminary objection that appeal was not properly instituted because Ch.Fazal-e-Hussain was not legally competent to act on behalf of Federation of Pakistan is hereby repelled.
21. The learned counsel for the petitioners-respondents, Raja Muhammad Hanif Khan, has contended that Attorney-General of Pakistan, Qazi Muhammad Jamil, cannot represent the Federation of Pakistan because he is not enrolled as an advocate of the Supreme Court of Azad Jammu and Kashmir. The learned counsel has maintained that under Article 100 of the Constitution of Pakistan (1973), the Attorney-General has right to audience in all the Courts of Pakistan but there is no provision in the Interim Constitution Act, 1974 entitling him to plead or act on behalf of the Federation of Pakistan without first complying with the Rules known as Azad Jammu and Kashmir Supreme Court Rules, 1978 (hereinafter shall be called as the Supreme Court Rules). It may be stated that under Order IV, Rule 1 of the Supreme Court Rules, an advocate can plead only if he is enrolled as such as provided under the Rules; similarly under Order IV, Rule 12, an advocate has to be enrolled as an advocate on record for acting and pleading on behalf of his client. However, the learned Attorney-General made submissions on behalf of the Federation of Pakistan with our permission. As the Attorney-General appeared to have been under the wrong impression that he could plead before this Court as an Attorney-General without first having been enrolled as an advocate, we permitted him to address arguments in relaxation of the relevant rules in exercise of powers which vest in this Court under rule 1 of Order XLIII of the Supreme Court Rules.
22. ' It may be stated that the Attorney-General was also authorised by the Law and Justice Division of Pakistan vide letter dated 5th April 1993 to address arguments in this Court in the case. Besides, under Order IV, rule 19, a formal power of attorney was not required to be filed in this Court because he merely pleaded and not acted out behalf of the Federation of Pakistan. Moreover, as Ch. Fazal- e-Hussain, Advocate-on-record, addressed bulk of the arguments on behalf of the Federation of Pakistan, it would hardly make any difference if the arguments advanced by the learned Attorney- General are treated to be that of an 'Amiens curiae' and not on behalf of the Federation of Pakistan.
23. Thus, the contention of the learned counsel for the petitioners-respondents that the arguments advanced by the Attorney-General should not be treated as a representative of Federation of Pakistan but as amicus curiae is not tenable and is hereby repelled.
24. ' It has been contended on behalf of the appellants that the High Court has not applied its mind to the nature of the writ in view of the relief prayed for. It has been submitted that there must be a legal right vested in a party and a duty cast on the opposite-party to perform it justifying the issuance of a writ in the nature prayed for. It has been further contended that in the instant case the nature of relief prayed for shows that the respondents sought a writ of mandamus and not of quo warranto. It has also been contended that a bare reading of section 44 of the Interim Constitution Act, 1974 shows that writ of quo warranto is only issued if it is shown that a person was holding a public office in connection with the affairs of the State without an authority of law; in the instant case there was no such question involved and, thus, the High Court, by treating the writ as a writ of quo warranto, has shown that it did not grasp even the nature of the relief prayed for and dealt with the matter superficially and mechanically. The learned counsel has further submitted that now a direction to the Federation of Pakistan to hand over the administration of the Northern Areas to the Azad Jammu and Kashmir Government can fall within the ambit of a writ of quo warranto. It has also been contended that irrespective of the fact that High Court had no jurisdiction in the matter, no legal right vested in the petitioners-respondents justifying issuance of a writ against the Federation of Pakistan for handing over the administrative control of the Northern Areas to the Azad Jammu and Kashmir Government.
25. ' We have given our due consideration to the arguments advanced. It would be expedient to reproduce below provision of section 44 of the Interim Constitution Act, 1974 so as to appreciate the matter in its true perspective:- 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 doing that which he is not permitted by law to do, or to do that which he is required by law to do; or declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; 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) An order shall not be made under subsection (2) of this section on application made by or in relation to a person in the Defence Services in respect of his terms and conditions of service, in respect of any matter arising out of his service or in respect of any action in relation to him as a member of the Defence Services.
(4) Where--
(a) application is made to the High Court for an order under clause (a) or clause (c) of subsection (2); and
(b) the Court has reason to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or otherwise being harmful to the public interest, the Court shall not make an interim order unless the Advocate-General has been given notice of the application and the Court, after the Advocate-General or any officer authorised by him in this behalf has been given an opportunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in clause (b) of this subsection.
(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."
26. It is evident from section 44(2)(a)(i), reproduced above, that only a person performing functions in connection with the affairs of Azad Jammu and Kashmir can be directed to refrain from doing an act which he is not permitted by law to do or to do an act which he is required by law to do. If no such right is shown to have vested in the petitioners-respondents and there is no corresponding legal duty cast on the appellants, no writ could be issued under section 44 of the Interim Constitution Act. Thus, no relief in form of a writ could be granted even if it could be justified on moral, historical and political considerations, until and unless it has a sanction of law behind it.
27. ' It was rightly contended by the learned counsel for the appellants that even if it is assumed that Northern Areas fall within the definition of 'Azad Jammu and Kashmir', the High Court could not issue a writ of mandamus. His contention was that according to section 44 of the Interim Constitution Act, a public functionary can be directed 'to do that which he is required by law to do' but there is no law which provides that Northern Areas be administered by the Azad Government.
28. We may refer to the following case-law: ' In case reported as Masudul Hassan v. Khadim Hussain (PLD 1963 SC 203), it was held that an applicant seeking an order mandamus must show that there resides in him a legal right to be enforced and there is a legal duty on the party against whom a mandamus is sought to do or refrain from doing an act.
29. ' In Mrs. M. Ali Khan v. The Province of East Pakistan (PLD 1960 Dacca 382), it was held that it depends upon the circumstances of each case as to whether mandamus should be issued or not. It was further observed that a mandamus will issue only if there resides in the petitioners some legal right who has no other remedy for the redress of the same and that the person against whom the mandamus is sought has a statutory obligation to perform or refrain from performing the act.
30. ' In case reported as Subhan Beg v. Pakistan State Oil Co., Ltd., Rawalpindi (PLD 1980 Pesh. 113), it was observed as under:- "....Now the writ of mandamus is a direction requiring a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation or a Province or a local authority to do something he is required by law to do. Its object is to enforce a plain, positive and specific duty imposed by law when there is no other adequate legal remedy available.
31. Therefore, a person claiming a mandamus, in order to be entitled to receive it, must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced. And this duty must be one which is clearly defined, imposed or enjoined by law. In other words an applicant for a mandamus must show that he has a legal right to the performance of a legal duty by the party against whom a mandamus is sought. Thus in the absence of proof that any statutory duty was involved or any legal right was being enforced or performance of a public duty was being claimed, a mandamus cannot be issued."
32. ' This Court has in an appeal entitled Azad Government of the State of Jammu and Kashmir v.
33. Ansar Burney (Civil Appeal No, 46 of 1993, decided on 5-3-1994), observed as under:--- "The plain reading of extract from section 44 reproduced above, would reveal that a writ of mandamus can only be issued if there is a legal right which vests in the aggrieved person and the person against whom the mandamus is sought is under a legal obligation to perform or refrain from performing an act."
34. In the instant case it has not been shown by the petitioners-respondents that the conditions precedent for issuing the writ prayed for existed in view of any constitutional or other statutory provisions. So far as agreement dated 28-4-1949 is concerned, suffice it to say that a contractual obligation cannot be enforced by resorting to writ jurisdiction and even otherwise no relief was sought by the petitioners-respondents on the basis of aforesaid contract.
35. ' The next question pertains to the jurisdiction of the High Court. It has been vehemently argued by the learned counsel for the appellants that the High Court was not legally competent to assume the jurisdiction in the instant case under section 44 of the Interim Constitution Act read with the Preamble of the Azad Jammu and Kashmir Courts and Laws Code, 1949. The jurisdiction of the High Court has been challenged by the appellants on twofold grounds:--- "(i) Firstly because the Northern Areas do not fall within the definition of expression 'Azad Jammu and Kashmir' as given under section 2 of the Interim Constitution Act; and
(ii) secondly because the Federation of Pakistan is not amenable to the jurisdiction of the High Court as it cannot be said while administering the Northern Areas, the Federation of Pakistan was performing functions in connection with the affairs of Azad Jammu and Kashmir as envisaged under section 44 of the Interim Constitution Act, 1974. Besides, the Federal Government was located beyond the territorial jurisdiction of the High Court." (Underlining is ours).
36. ' For appreciating the matter in controversy, the definition of the expression 'Azad Jammu and Kashmir' is reproduced as below:--- "2. '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."
37. ' It has been contended on behalf of the appellants that the High Court has misinterpreted the aforesaid provision of law by observing that the definition of the expression 'Azad Jammu and Kashmir' is inclusive of the Northern Areas and that the word 'and' occurring in the definition before the expression 'such other territories as may hereinafter come under its administration' should be read as word 'or'. It has been contended on behalf of the appellants that word 'and' is used in conjunctive sense whereas word 'or' is employed in disjunctive sense; if the word 'and' is changed by 'or' it would imply that either those areas would fall within the ambit of 'Azad Jammu and Kashmir' which were liberated by the people of State before the promulgation of the Interim Constitution Act, 1974 and came under its administration or the territories which may come under the administration of Azad Jammu and Kashmir Government after the promulgation of the Interim Constitution Act, 1974 and not both kinds of territories, i,e,, those which were under the administrative control of Azad Kashmir Government before the promulgation of the said Act and those came under its control after the promulgation of the Act. Evidently, such an interpretation of the definition 'Azad Jammu and Kashmir' would lead to preposterous results not intended by law- giver; because according to the definition of 'Azad Jammu and Kashmir' the Legislature intended both types of territories, those which were liberated and came under the control of Azad Jammu and Kashmir before the promulgation of the Interim Constitution Act, 1974 and those which might come under the administration of Azad Jammu and Kashmir after the promulgation of the Constitution, whether liberated by the people of State or not. The learned counsel for the appellants maintained that although the words 'and' and 'or' are interchangeable, yet it can be done so only when such a change is necessitated for giving true effect to the intention of the Legislature. It has been contended that in the instant case the intention of the Legislature can be given effect to only if the word 'and' is read in the definition as such and is not reads as 'or'.
38. ' The High Court while dealing with the point has observed in para. 134 of its judgment as under:- "134. It is 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."
39. It may be stated that words `and' and `or' are not interchangeable as a matter of routine; these can be substituted for each other' only if it is necessitated for giving effect to the actual intention of the Legislature. A reference may be made to the following authorities in support of the view that substitution of the words 'and' and `or' for each other in a statutory provision is made out of necessity rather than as a matter of expediency: ' In Syed Yakub Shah v. The State (PLD 1978 Quetta 158), it was observed that while interpreting a statutory provision words 'and" and 'or' are interchangeable for giving true effect to the intention of Legislature. It was opined that the word 'and' is used in a conjunctive sense whereas 'or' is used in a disjunctive sense but very often the intention of Legislature is best ascertained by reading the two words as interchangeable.
40. ' In case reported as Muhammad Arshad Khan v. J & P Coats Pakistan Ltd., Karachi (PLD 1977 Kar.
41. 83), it was observed that words 'and' and `or' could be read for each other so as to ascertain the intention of the Legislature.
42. ' In Badsha Mian v. The State (PLD 1966 Dacca 1), it was held that in section 5(1) of the East Pakistan Anti-Corruption Act, 1957, in expression vhich there is reason to believe to have been acquired by improper means and whiea is proved to be disproportionate to his known sources of income", word 'siad' means 'or' and should be read as such because if expression is not read in disjunctive sense, it would lead to absurdity.
43. ' In case reported as Mst. Mahmuda Khatun v. Muhammad Habibur Rahman (PLD 1965 Dacca 358), it was held that conjunction 'or' in Explanation to rule 1 of Order XXXIII of the Civil Procedure Code is unhappy. In essence and substance it really means 'and'. The test whether a person is a pauper or not is dependent on answer to the question: 'Has the applicant sufficient means to pay the necessary court-fees? It would be absurd to think that if the amount of the court-fees is fixed, then insufficiency of the means to pay the same is the test; but, if the amount itself is not fixed, then he cannot be described as a pauper if he is possessed of property which is worth more than one hundred rupees. Therefore, even in a case where the amount of the court-fees is not fixed, the test is the same, namely, whether the applicant has sufficient means to pay the court-fees.
44. ' In Ishwar Singh Bindra v. State of U.P. (AIR 1968 SC 1450), it has '-!Cr n held that generally 'and' is used in cumulative sense and it is antithesis of word 'or'. However, sometimes even such a connection, by force of a context, is read as 'or' to carry out the intention of the Legislature.
45. ' In case reported as Salehan v. The State (PLD 1969 SC 267), while interpreting section 497 of the Cr.P.C., expression 'punishable with death or transportation for life', it was observed that ordinarily `or' is used in disconjunctive sense and there was no evidence that 'or' in the aforesaid expression was used as conjunctive sense. It was observed that although ordinarily, 'or' is used in disconjunctive sense, it can be read as 'and' only when it is necessary to do so for carrying out the intention of the Legislature.
46. ' In L. H. Sugar Factory v. Moti (AIR 1941 A11.243), it was observed that the Court must ordinarily adhere to the literal interpretation of the words used. However, the words 'and' and 'or' are interchangeable only if such conversion is necessary for carrying out the intention of the Legislature. It was observed that it is the duty of a Court of law to primarily adhere to the strict literal interpretation of the words used, and the substitution of conjunctions should not be made without sufficient reason. But if such adherence is destructive of the object of the enactment and leads to anomalies and absurdities, it is fair to assume that the Legislature did not use the words in that sense and in such a case the conversion of 'and' into the disjunctive 'or' is permissible.
47. ' In case reported as The Food Inspector, Trichur Municipality, Trichur v.
0. D. Paul (AIR 1965 Kerala 96), while interpreting section 2(1)(j) of Prevention of Food Adulteration Act, 1954, it was held that word 'and' in the section is to be read as 'or' because a literal interpretation of the words will lead to absurdity which could not be the intention of the Legislature.
48. ' In case reported as In re: Salem Govindappa Chetty (AIR 1970 Andhra Pradesh 293), in section 2 (1)
(j) in Prevention of Food Adulteration Act, 1954, the word 'and' was read as 'or' in view of the fact that if the word `and' is not 'or', a literal interpretation of the words would lead to absurdity which cannot be attributed to the Legislature.
49. ' The view taken in the authorities, referred to above, is also supported by 'Corpus Juris Secundum', Vol. 82, at page 673 wherein it has been observed as under:-- "Generally the words 'and' and 'or' as used in statutes are not interchangeable, being strictly of a conjunctive and disjunctive nature respectively, and their ordinary meaning should be followed if it does not render the sense of the statute dubious. It has been held, however, that such words are not words of technical meaning and they derive their force and meaning from the context and connection of the matter in which they are used. Accordingly, the words 'or' and "and" may be construed as interchangeable, when, and only when, necessary to effectuate the obvious intention of the legislature, as where the failure to adopt such construction would render the meaning of the statute ambiguous or result in absurdities, but it has been held that the Court will resort to such construction only where the act itself furnishes cogent proof of the legislative error."
50. It follows from what has been stated above that view taken by the High Court that the word "and" used in the definition is to be read as "or" is not sustainable. Even if it is assumed for the sake of argument that such a substitution can be made in the definition of the expression 'Azad Jammu and Kashmir', it would not make any difference because the expression 'such other territories as may hereinafter come under its administration' used in the definition of 'Azad Jammu and Kashmir', in context of exercise of writ jurisdiction implies the territories which are already under the actual control of the Azad Jammu and Kashmir on the date of the institution of a writ petition and not the territories which may subsequently come under its control. The point can be better illustrated by an example. For instance, we cannot say that as territories comprising Indian-held Kashmir may, at any time in future, come under the administration of Azad. Jammu an Kashmir, those would be deemed included in the definition of Azad Jammu and Kashmir, as given in the Interim Constitution Act, 1974 because, in that case it would imply that the territories comprising Indian-occupied Kashmir are the territories of Azad Jammu and Kashmir as defined under section 2 and section 44 of the Interim Constitution Act, 1974 and, thus, a writ can be issued even against an authority functioning in connection with the affairs of the Indian-held Kashmir. Obviously, such an interpretation would not only be preposterous but would be violative of very scheme of the Interim Constitution Act, 1974 and the intention of framers of the Interim Constitution Act. Besides, it would imply that the High Court of Azad Jammu and Kashmir is legally competent to issue a writ to an authority functioning in connection with the affairs of the Indian-held Kashmir.
51. ' The next limb of the argument of the learned counsel for the appellants is that a writ against Federation of Pakistan cannot be issued because that is not amenable to the jurisdiction of Azad Jammu and Kashmir High Court. It has been contended on behalf of the petitioners-respondents that as a writ can be issued against Azad Jammu and Kashmir Council of which the Prime Minister of Pakistan is Chairman, it can also be issued even against the Federation of Pakistan, especially when certain functions in connection with the affairs of Azad Jammu and Kashmir are to be performed by the Government of Pakistan as envisaged under sections 19, 21 and 56 of the Interim Constitution Act, 1974.
52. After giving due consideration to the matter, we are of the view that a writ against the Federation of Pakistan would be competent if the matter falls within the ambit of section 44 of the Interim Constitution Act, 1974 and an act or omission is committed while performing functions in connection with the affairs of Azad Jammu and Kashmir. However, the present writ petition was filed by the petitioners-respondents alleging that the Northern. Areas are under the administration of the Government of Pakistan and the relief was sought against it and not against the Azad Jammu and Kashmir Council. As the writ has been filed against the Federation of Pakistan, it is to be decided as such. Thus, an argument with reference to the functions of the Azad Jammu and Kashmir Council is not relevant to the matter in dispute. Consequently, an act of the Government of Pakistan purported to have been done under the Interim Constitution Act, 1974 is not immune from judicial review of the High Court of Azad Jammu and Kashmir.
53. ' It has been vehemently argued by Raja Muhammad Hanif Khan, the learned counsel for the petitioners-respondents, that Northern Areas were part of the State of Jammu and Kashmir as it existed before 14th of August 1947. He has referred to historical background and other documentary evidence on the record in support of his contention. The learned counsel has also referred to Articles 1 and 246 of the Constitution of Pakistan (1973) and maintained that Northern Areas are not included in the territories of Pakistan in view of the relevant provisions of the Constitution. The learned counsel has cited following judgments of the superior Courts of Pakistan wherein it has been held that Northern Areas are not Constitutionally part of Pakistan and its legal position is the same as that of Azad Jammu and Kashmir:-- ' In Dilawar Shah v. The Judicial Commissioner, Northern Areas Gilgit (Writ Petition No, 5961 of 1978, decided on 16-5-1981), it has been observed by the Lahore High Court that the Northern Areas which are administered by the Federal Government are not part of any Province of Pakistan nor these areas were included in the tribal areas thus a resident of Northern Areas cannot seek redress of his grievance by invoking the writ jurisdiction of Lahore High Court. Reliance was placed on Sakhi Daler Khan v. Superintendent In-Charge, Recovery of Abducted Women (PLD 1957 Lah. 813) wherein it was held that `Azad Kashmir is not part of Pakistan'. Constitutionally speaking the position of Northern Areas is not different from Azad Kashmir.
54. ' In case reported as Haji Bashir Ahmed Khan v. Secretary, Establishment Division (1983 PLC (C.S.)
55. 333), it was observed that the administration of the Northern Areas was a peculiar entity. It was opined that though the territory was amenable to the authority and control of the President of Pakistan, yet it did not function as a Government Department within the relevant provision of law and, thus, a civil servant aggrieved by an order of the President could not seek the redress of his grievance from the Federal Service Tribunal.
56. ' It may be stated that the High Court, in the light of the documentary evidence on record, has discussed in detail the historical and Constitutional background of the Northern Areas spreading over 74 pages and came to the conclusion that these areas were part and parcel of Jammu and Kashmir State; it also concluded that even the Federation of Pakistan did not controvert this position in the written statement filed by it. It may be pointed out that in fact such a long exercise by the High Court on the question as to whether the Northern Areas were part and parcel of the Jammu and Kashmir State was not required because it has not been the case of the Federation of Pakistan even in this Court that these areas were not part and parcel of Jammu and Kashmir State before 14th of August, 1947, rather the case of the Federation of Pakistan has been that in view of the definition of expression 'Azad Jammu and Kashmir' given in the Interim Constitution Act, 1974, these areas are not constitutionally included in the area which is administered by Azad Government of the Jammu and Kashmir State and, thus, a writ did not lie under section 44 of the Interim Constitution Act, 1974. This aspect of the case has been discussed in detail in the earlier part of this judgment. Suffice it to say at this stage that the findings of the High Court on the point that Northern Areas were historically and Constitutionally part and parcel of the Jammu and Kashmir State before 14th August, 1947. Suffer from no legal infirmity; even otherwise, this fact has not been challenged by the Federation of Pakistan before this Court. Thus, the said findings stand confirmed. However, the question as to whether the said areas, at the time of the institution of the writ in the High Court, were Constitutionally part of Azad Jammu and Kashmir State, as defined in the Interim Constitution Act, 1974, is a different matter altogether. The learned counsel for the petitioners-respondents, Raja Muhammad Hard Khan, has maintained that Constitutional provisions should be liberally interpreted and they should be read together so as to ascertain the intention of the Legislature. According to the learned counsel for the petitioners-respondents, whether the Northern Areas are included in the definition of expression 'Azad Jammu and Kashmir' should be ascertained keeping in view the other provisions of the Interim Constitution Act, 1974 and the historical background of the State. The learned counsel has relied on the following authorities in support of his contention:-- ' In case reported as Chief Secretary/Referring Authority v. Sardar Muhammad Abdul Qayyum Khan (PLD 1983 SC (AJ&K) 95), it was observed that the Courts were the custodian of the Constitution and they were under obligation to protect law and strike down such provisions of law which were contrary to the constitutional provisions. It was further observed while interpreting a statutory provision to ascertain as to whether a law was respective or it was ex post facto law, the intention of law-givers should be ascertained in view of the relevant provision. While dealing with the principle a,1' interpretation of the Constitutional provision it was further observed that the Constitution must be interpreted as an organic whole and any repugnancy between the different provisions of the Constitution, which rendered a provision meaningless or inoperative should be avoided.
57. ' In Tribal Textile Mills Ltd., Lahore v. Province of Punjab (PLD 1979 Lah. 206), it was held that a beneficial construction should be placed on the Constitutional provisions; it should be interpreted in such a manner that none of the provisions of the Constitution became meaningless and inoperative. A provision of the Constitution should not be interpreted in isolation but should be considered along with other provisions of the Constitution as a whole instrument as one organic entity.
58. In book entitled 'Statutory Construction Manual' by Crawford, 1975 Edition, at page 383, it has been observed that the Court may consider general history of statute including its derivation, i. e., the various steps leading up to an enactment, as shown by the legislative journals, in its efforts to ascertain the intention of the Legislature where it was doubtful. However, it has also been emphasised that the legislative history cannot be considered where the statute's meanings are plain.
59. Generally speaking, we have no quarrel with the proposition propounded by the learned counsel for the petitioners-respondents that the Constitutional provisions should be read together and its provisions should not be interpreted in isolation. However, it does not imply that if a Constitutional provision is clear and suffers from no ambiguity, it would not be given its natural meanings and should be assigned meanings which its phraseology does not admit on plain reading. It is well- settled principle of law that while interpreting the words and phrases employed in a statutory provision, they should be given their natural meanings; nothing should be added or subtracted from a provision; and a law should be interpreted as it is and not as it should be. The contention of the learned counsel that if the Interim Constitution Act, 1974 is interpreted in the light of the Constitutional background of Azad Jammu and Kashmir, it would imply that definition of expression of 'Azad Jammu and Kashmir' given in the Interim Constitution Act, 1974 is inclusive of the Northern Areas is not sustainable because neither during the period of the enforcement of the Azad Jammu and Kashmir Government Act, 1970 nor after the promulgation of the Interim Constitution Act, 1974 any representation was given to the Northern Areas in the Azad Jammu and Kashmir Legislative Assembly or in Azad Jammu and Kashmir Council. No practical steps appear to have been taken by the Government of Pakistan or the Azad Jammu and Kashmir Legislative Assembly to give representation to the Northern Areas. Thus, it cannot be said that if Interim Constitution Act, 1974 is read as a whole in its historical background, the scope of the definition, of expression 'Azad Jammu and Kashmir' given in the Interim Constitution Act, 1974 would be so enlarged as to be inclusive of the Northern Areas.
60. ' It has been vehemently contended by M/s. Ghulam Mustafa Mughal and Ishfaque Hussain Kiany, the learned counsel on behalf of the Government of the Azad Jammu and Kashmir that although historically the Northern Areas were part of Azad Jammu and Kashmir State, yet the administration of the areas was given to the Government of Pakistan by virtue of the agreement dated 28-4-1949.
61. They maintained that the control of the Northern Areas should be given to the Azad Government of the State of Jammu and Kashmir, but all the same they contended that this could be done by mutual initiations and a writ could not be issued as has been done by the High Court in the instant case. The main plank of their arguments was that the High Court was not competent to issue a writ to Federation of Pakistan as it was beyond its territorial jurisdiction and even otherwise, the Federation of Pakistan was not amenable to the jurisdiction of the High Court of Azad Jammu and Kashmir in view of section 44 of the Interim Constitution Act, 1974 and the Azad Jammu and Kashmir Courts and Laws Code, 1949. It has been further contended that there being no legal sanction behind the matter, the writ was not competent. The learned counsel relied on the following authorities: ' In The Deputy Managing Director, National Bank of Pakistan v. Ataul Haq (PLD 1965 SC 201), a writ of certiorari sought against the employees of the National Bank of Pakistan was issued by the High Court. An appeal to the Supreme Court against the order of the High Court was accepted on the ground that writ could not be issued because some of the concerned parties were posted at the relevant time, in the National Bank Branch located at Karachi which was out of territorial jurisdiction of Dacca High Court. The writ issued by the High Court was recalled.
62. ' In case reported as A. Thangal Kunju Musaliar v. M. Venkatachalam Potti PLD 1956 SC (Ind.) 291, it has been held that the writ could not be issued beyond the territories subject to the writ jurisdiction of the High Court. It was also observed that the writ cannot be issued against a person who is not residing 'within the territory of High Court'.
63. ' In Syed Shah v. Political Agent, Bajaur Agency (PLD 1981 Pesh. 57), a Domicile Certificate issued by the political agent of a tribal area was cancelled. The writ was dismissed on the ground that as the matter pertained to the territory which was not subjected to the writ jurisdiction of the High Court, the writ was not competent. The contention that the writ petition was competent because it was conveyed to the person who was residing in the territory within the jurisdiction of the High Court was repelled.
64. ' In Commissioner, Income-Tax, Azad Jammu and Kashmir v. Messrs Haji All Khan & Co., Forest Lessee, Havelian PLD 1985 SC (AJ&K) 62 it was observed that the Azad Kashmir Government, for the all practical purposes, had all constitutional features of a separate Government. It was further observed that the Azad Kashmir territory did not constitute a part of Republic of Pakistan and was foreign territory within the meanings of the relevant provision of the Constitution.
65. ' In case reported as Noor Hussain v. The State PLD 1966 SC 88, it was held that part of the State of Jammu and Kashmir occupied by India was not a part of Pakistan within the meanings of Article 1 of the Constitution of Pakistan (1962) and, thus, a foreign country within the meanings of the relevant provisions of law.
66. ' In Muhammad Sadiq Khan v. The State (1983 PCr. LJ 276), it has been held that the function of the Court is not to make law but to interpret the law as it is. It has been further observed that if the Court has no jurisdiction over the subject-matter of suit or cause, the parties cannot confer such a jurisdiction by mutual agreement; thus, the decision of such a Court would be a decision without jurisdiction.
67. ' In The State v. Zia-ur-Rahman (PLD 1973 SC 49), the functions of three organs of the State, namely, Legislature, Executive and the Judiciary were discussed. It was opined that each of the organs must exercise its powers within the limits specified by the Constitution of which the Courts are itself creation. A distinction between 'judicial powers' and the 'jurisdiction of the Courts' was made. It was opined that it was important to remember that it was not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law if it has made it competently without transgressing the limits of the Constitution. It was further observed that if the law was ambiguous it was only Legislature to have right to change, amend or clarify the law if it was found by a Court that the language used by the Legislature conveyed different intent from one which was sought to be conveyed; the Courts, in any case, cannot change the law and they have to act within the sphere prescribed by the Constitution.
68. ' In case reported as Hakim Khan v. Government of Pakistan (PLD 1992 SC 595), it has been observed that after insertion of Article 2A in the Constitution of Pakistan (1973), Objectives Resolution has become substantive part of the Constitution. Thus, having become integral part of the Constitution, it has the same weight and status as other Articles of the Constitution. It has been further opined that a harmoneous interpretation is to be placed on different parts of the Constitution in such a manner that any of its provisions does not become nugatory. Thus, if the Court considers that existing provisions of the Constitution contravene the Injunctions of Islam in some respect, it should bring the matter to the notice of Parliament which is competent to amend the Constitution so that the offending provisions may be brought in conformity with the Injunctions of Islam. The superior Courts, in any case, have no power to declare the Constitutional provisions repugnant to Injunctions of Islam as being derogatory to Article 2A.
69. It may be stated that the question as to whether the writ could be issued against the Federation of Pakistan in the instant case has been dealt with in earlier part of this judgment generally speaking, it is correct that a writ against a person not residing within the territorial limits of a Court is not competent. However, this restriction does not apply to the High Court of Azad Jammu and Kashmir and this Court because from section 44 of the Interim Constitution Act, 1974, the words 'in Azad Jammu and Kashmir' were deleted by the Interim Constitution (Ist Amendment) Act (Act IX) of 1975.
70. It is due to this amendment that the High Court of Azad Jammu and Kashmir is able to issue writs against the functionaries like Azad Jammu and Kashmir Council and the Chief Election Commissioner of Azad Jammu and Kashmir who perform functions while sitting outside Azad Jammu and Kashmir. There are certain provisions in the Interim Constitution Act, 1974 under which the Government of Pakistan has been invested with certain powers with regard to the affairs of the Azad Jammu and Kashmir. Thus, an action performed in exercise of such powers may be open to judicial review under section 44 of the Interim Constitution Act.
71. Consequently, if exercise of such powers by the Government of Pakistan is shown to be violative of law, an appropriate order may be made in exercise of writ jurisdiction, despite the fact that offices of Government of Pakistan are located beyond the territorial jurisdiction of Azad Jammu and Kashmir.
72. To summarise, an the light of what has been stated, the conclusion which we reach is that Northern Areas are a part of Jammu and Kashmir State but are not a part of Azad Jammu and Kashmir as defined in the Interim Constitution Act, 1974. We have also reached the conclusion that the High Court of Azad Jammu and Kashmir did not possess the necessary jurisdiction to issue a writ against the Government of Pakistan for handing over the control of the Northern Areas to Azad Jammu and Kashmir. Accordingly both the above titled appeals are accepted and the impugned judgment of the High Court is vacated with the result that the writ petition filed in the High Court stands dismissed. In view of the circumstances of the case, no order is made as to the costs.
73. (Sd.)
74. SARDAR SAID ,MUHAMMAD KHAN, C.J.
75. (Sd.)
76. CH. MUHAMMAD TAJ, AD HOC, J.
77. ' BASHARAT AHMAD SHAIKH, J.---I agree with the conclusions as given in the judgment of the learned Chief Justice but I am unable to subscribe to the view about the maintainability of the appeal filed by the Government of Pakistan because in my view the said appeal is unauthorised.
78. However, it will not affect the outcome., of the case due to the presence of another valid appeal filed by the Azad Government of Jammu and Kashmir State about which there is no objection about maintainability.
79. ' The Federation of Pakistan is appellant in "the case. Vakalatnama on behalf of the Federal Government has been signed by Mr. Ahmad Sadiq, Secretary of Kashmir Affairs and Northern Affairs Division. Two objections were raised by respondents Nos. 1 to 3 in their concise statement about the maintainability of the appeal. The objections are to the following effect:- "That the appeal has been lodged without obtaining the sanction of the competent authority in the Law and Justice Division, Government of Pakistan. Moreover, the Vakalatnama has been signed by Mr. Ahmad Sadiq, Secretary of Kashmir Affairs and Northern Affairs Division. Mr. Ahmad Sadiq is not the officer authorised to sign a Vakalatnama in view of provisions contained in the Rules of Business of Government of Pakistan "
80. ' It is provided in rule 19 of Order IV of the Azad Jammu and Kashmir Supreme Court Rules that every Advocate-on-Record shall before acting on behalf of any person or party file in the Registry a power of attorney in the prescribed form authorising him to act. The prescribed form is shown as Form No,3 in Schedule VI. This power of attorney, as mentioned above, is signed by the Secretary of the Kashmir Affairs Division and is not accompanied by any Government order authorising him to act as delegated of the Federal Government. The question therefore, is whether Mr. Ahmad Sadiq is authorised to sign a Vakalatnama on behalf of the Federation.
81. ' In accordance with Article 90 of the Constitution of Pakistan executive authority of Pakistan vests in the President. In accordance with Article 48 the President has to act on advice of the cabinet or the Prime Minister. It is provided 'n Article 99 that the President shall by rules specify the manner in which orders and other instruments made and executed In his name shall be authenticated.
82. According to the said Article the President shall MO make rules for the allocation and transaction of the business of the Federal Government. However, the President, Prime Minister and the Cabinet are not required by the Constitution to exercise all the powers themselves and it is permissible under the Constitution to delegate authority of the Federation to the subordinate authorities and also to allocate the business of Government.
83. ' No document was filed by the learned counsel for Government of Pakistan to show that Secretary, Kashmir Affairs and Northern Affairs was authorised by a general or special order to engage a counsel on behalf of the Federal Government. He relied on rule 7 read with Schedule IV of the Rules of Business of the Federal Government. He also prayed that he may be allowed to file some documents to show that he had been appointed as counsel in the case with the authority of the Law and Justice Division. This prayer was made to meet an argument raised by the learned counsel for the respondents, Raja Muhammad Hanif Khan that it is the Law and Justice Division and not Kashmir Affairs and Northern Affairs Division which deals with the appointments of counsel for the Federal Government. He was allowed to do SO.
84. ' Ch. Fazal-i-Hussain has placed on record a letter of the Section Officer of the Law and Justice Division and has claimed that the authentication given by the said Officer is sufficient to confer authority on him when seen in light of rule 7 and Schedule IV of the Rules of Business. Rule 7 lays down that executive actions of the Government shall be expressed to be taken in the name of President and that the officers listed in Schedule IV may authenticate all orders and other instruments made and executed in the name of the President. Schedule IV includes Secretary, Special Secretary, Acting Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Section Officer and Officer on Special Duty.
85. The document is an office memorandum in which a Section Officer of the Law and Justice Division of the Government of Pakistan informed the Kashmir Affairs Division about the nomination of Ch. Fazal-i-Hussain as Advocate-on-Record to file appeal before this Court. In the office memorandum it is nowhere claimed that the President of Pakistan has been pleased to appoint Ch. Fazal-i-Hussain as Advocate-on-Record. Rule 7 mentioned above only gives the powers to authenticate an order or instrument executed in the name of the President. By this rule the authority to take decision on behalf of the President or to exercise the executive authority of the Federation of Pakistan has not been vested in the Section Officer. The meaning of the word "authenticated" is clear and unambiguous. "Authentication" means to establish the credibility of a statement. It means that when a Section Officer of the Government of Pakistan issues an order in the name of the President it will be treated to be an order or approval of the President or any other authority acting as a delegatee of the President. It does not mean vesting of authority. Therefore Rule 7 mentioned above does not vest authority in the Officers mentioned in Schedule IV. Even otherwise it cannot be visualised that powers of the President were intended to be delegated simultaneously to officers beginning from the Secretary to the Section Officer so that any one of them may exercise the powers. Ch. Fazal-i-Hussain relied on item 22 of Schedule II of Rules of Business.
86. ' Schedule II is referable to Rule 3(3) of the Rules of Business. Rule 3 deals with the allocation of business. Sub-rule (1) that Federal Secretariat shall comprise of Ministries and Division shown in Schedule I, Sub-rule (2) lays down that the Prime Minister may constitute a new Ministry. Sub-rule
(3) lays down as follows:--- "The business of the Government shall be distributed amongst the Division in the manner indicated in rule 2. Provided that the distribution of the business or the constitution of the Division may be modified from time to time by Prime Minister."
87. Sub-rule (3) has the effect of distributing the business of the Government. Schedule II lays down the subjects relatable to the Divisions of the Federal Government. Schedule II does not authenticate or delegate any power. It only lays down that which subjects will be dealt with by a particular division. Law and Justice Division is mentioned at serial No,22 and it contains 20 items. It does not lay down that power of the Federal Government in respect of these 20 items will be exercisable by the Officers of the Law Division by themselves. For instance at No, 11 occurs the following subject: "The Attorney-General". It does not mean that an officer of the Government in the Law and Justice Division will appoint the Attorney-General of Pakistan in his own discretion. It only means that when the matter of appointment of Attorney-General of Pakistan is being considered it will be processed in the Law and Justice Division and after the approval of the President of Pakistan any Officer of that Division, may issue the Government order under his signature in the name of the President. It leads to the conclusion that the letter of the Section Officer placed on the record does not contain the approval of the President. Therefore, it does not carry the authority of the Federation.
88. According to rule 19, Order IV of the Azad Jammu and Kashmir Supreme Court Rules power of attorney has to be filed in the Court by the person or authority. Such power of attorney is to be signed either by the party or an authorised agent. As already noted the Secretary of the Kashmir Affairs Division has signed the Vakalatnama. Therefore, the office memorandum of the Section Officer of the Law and Justice Division in any case is of no help because it was not filed with the appeal. Since it has not been shown that Mr. Ahmad Sadiq was duly authorised to sign on behalf of the Government of Pakistan the appeal is rendered to be without lawful authority.
89. ' There is a judgment of this Court on this point which appears to me to be direct authority. In Azad J & K Government v. Habibullah Lone PLD 1984 SC (A&K) 13 an appeal was filed on behalf of the Government by the Additional Advocate-General on the authority of a Vakalatnama signed by the Secretary Law. An objection was raised by the learned counsel for the respondent in the case that the Government had not issued any direction that the appeal may be filed in this Court. In order to ascertain the true facts the file of the Law Department was summoned and it was found that the Law Secretary had appointed Additional Advocate-General as Advocate in the case and directed him to file appeal but no approval was obtained by the Government and the Vakalatnama executed by the Law Secretary was found to be unapproved. It was observed in para. 8 of the judgment that:- "An appeal or petition for leave to appeal can validly be instituted if it is presented by a person competent to institute it. Here in this case Sardar Rafique Mahmood had no authority from a competent person, i,e,, the Government to institute the petition. No laboured argument is required to trace out the reason. Sardar Aftab Ahmad Khan, who had signed the Vakalatnama to institute the appeal or petition for leave to appeal in the Supreme Court, had no direction from the Government to move an appeal or a petition for leave to appeal and, therefore, he was incompetent to authorise Sardar Rafique Mahmood to move the petition for leave to appeal in the Supreme Court."
90. ' It may be useful to reproduce para. 13 of the judgment:--- "Besides rule 19 of Order IV of the Azad Jammu and Kashmir Supreme Court Rules, 1978, regulates the procedure in this behalf which lays down the conditions that are necessary for investing an Advocate with the authority to act on behalf of a person. The relevant provision is: `Every Advocate on record shall before acting on behalf of any person or party file in the Registry a power of attorney in the prescribed form authorising him to act.'
91. ' This provision would clearly show that before an Advocate can act for a party he must firstly have an authority by him to do so and secondly the authority must be in writing by the party. Unless these two conditions are complied with and action taken by an Advocate on behalf of a person would not be deemed to be a valid performance of his function. In the absence of a duly executed power of attorney it would be said that such an Advocate had no authority to act on behalf of that person. A pleader who files a petition for leave to appeal cannot do so except when he is authorised in writing by such a person. Therefore, filing of petition on behalf of Government by Sardar Rafique Mahmood who had not been duly appointed by the Government in writing, was required under rules, is not only an irregularity which may be cured at a subsequent stage but it is also completely devoid of validity."
92. ' Therefore, I would dismiss the appeal filed by the Federation of Pakistan while agreeing that the appeal filed by Government of Azad Jammu and Kashmir be accepted.
93. (Sd.)
94. BASHARAT AHMAD SHAIKH, J ORDER OF THE COURT ' Appeal No, 34 of 1993 titled 'Azad Government v. Malik Muhammad Miskeen and others' is accepted with no order as to costs. In accordance with the majority view Appeal No,37 of 1993 titled 'Federation of Pakistan v. Malik Muhammad Miskeen and others' is accepted with no order as to costs.
95. (Sd.)
96. SARDAR SAID MUHAMMAD KHAN, C.J.
97. (Sd.)
98. BASHARAT AHMAD SHAIKH, J (Sd.)
99. CH. MUHAMMAD TM, AD HOC, J.