' SYED MANZOOR HUSSAIN GILANI, J.-The petitioners, through this petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, are seeking the following relief from this Court:-- "20. It is, therefore, prayed that the petitioners may please be allowed the following relief:--
(i) That the non-petitioners Nos.1 and 2, being of impeachable character for their wilful misconduct and breach of oath of office and trust being prima facie, disqualified, may kindly be so declared and be disallowed to continue as Assembly Members or P.M./President and be restrained to contest the said offices in future.
(ii) That any other appropriate relief admissible under law may please be granted in favour of the petitioners against the non-petitioners; and the writ in exercise of powers under section'44 (2), (a),
(i) and (b), (ii) of the Interim Constitution Act, 1974, may kindly be issued against the non- petitioners."
2. The petitioners have raised the following grounds in their petition for impeachment of respondents Nos.1 and 2:-
(1) That the petitioners are the citizen of the Azad Jammu and Kashmir State, as is evident from the particulars of address described above.
(2) That the petitioners are registered as voters, among the electors, in L.A.X. Kotli-III and Muzaffarabad.
(3) That the non-petitioner No,1 was elected as member of the Assembly against the reserve seat of Ulema-e-Din or Mushaikh by the elected members of the Assembly, as provided under section 22(1) (c) of the Interim Constitution Act, 1974.
(4) That the non-petitioner No,2 was elected President of A.J.K.
(5) That under the Constitution and other Laws, it was enjoined upon non-petitioner No,1 as P.M. A. J .K. To perfrom his function honestly, efficiently and diligently in the following directions:
(A) To provide better Government and administration to A.J.K.
(B) To render full support (in men and material to in the ongoing struggle for freedom of the State of J&K.
(C) To resolve and settle the problems of Refugees living in camps in A.J.K. And settled in Pakistan.
(D) To enforce and uphold the rule of law in A.J.K.
(E). To safeguard the basic and Fundamental Human Rights and disallow and discourage their violation.
(F) To introduce basic reforms to raise the standard of living and rate of literacy in A.J.K.
(G) To uphold and adhere to merit in the recruitment of civil services and other sections of society; and
(H) To accomplish or fulfil the commitments and promises made to the electors at large, through.
The Election manifesto of the party (Muslim Conference).
(6) That this Hon'ble Court may take the judicial notice of the fact that non-petitioner No,1 has completely failed to fulfil the aforesaid duties.
(7) That non-petitioner No,1, as P.M., A.J.K. Held the representative office. As public representative he was undef an oath of office to avoid and discourage corruption, bribery, jobbery, favoritism, nepotism mal-administration, misapplication and diversion of public funds and money raised by public subscription or otherwise under his control and in his possession directly or indirectly, abuse of power, authority, position and status: Unfortunately the conditions are just opposite. It is, therefore, justified to ascribe wilful misconduct to the non-petitioner No,l.
(8) That it is an open secret that Sardar Attique Khan, M.L.A., son of the non-petitioner controls and runs the administration. He publicly indulges, in service matters and exercises the authority of non- petitioner No,1 in initial recruitment, promotions, postings and transfers of the civil servants. The cabinet is more subordinate and dependent to Sardar Attique Ahmed Khan rather than the non- petitioner. The notorious case of "Jumbo auction recruitments through Attique Commission, is an instance of the fact. Besides the most mysterious manner of covering the scandalous recruitment was the framing of the bill and its passage through the Assembly. Although the High Court and Supreme Court annulled the law, the so-called recruitment made through Attique Commission, is yet intact. The whole scandal is being comouflaged by the puppet Public Service Commission.
(9) That the capital and Government seat of A.J.K. Is Muzaffarabad. It is quite strange that both the non-petitioners, spent 330 days of the year at Islamabad and near about 35 days annually are spent at the Capital. In consequence of the absence of the Head of the State and Head of the Government the Minister, Secretaries and other ministerial staff is also found missing from the respective seats in the Secretariat. An insult to the injury is that false T.A., D.A. Are charged. Thus.
The public exchequer is openly looted. The misuse of Government vehicles is another factor which deserves sympathetic attention. The transport privilege is grossly abused by the non-petitioners, their families, family friends and staff members.
(10) That the protocol of the non-petitioners was reminder of the colonial rule, rather worst than that. It needs to be finished forthwith. To have more than one official residence is an extreme extravagance. Non-petitioner No,1 has three official residences at Muzaffarabad, Islamabad and Ghaziabad, where as non-petitioner No,2 has in addition to Muzaffarabad and Islamabad, two official residences at' Kotli and Fatehpur Nakiyal respectively. These are furnished, renovated and maintained by the P.W.D. It is alleged that rent was also charged. From Government though these accommodations were for exclusive use of the now-petitioners and their families.
(11) That in addition to the points listed above, it has to be accepted that non-petitioner No,1 and his cabinet failed to undertake development programme in the Urban and Rural Areas of A.J.K. Now, when the Elections to the Assembly' are scheduled to take place within next couple of months, the non-petitioners and their protege are busy day and night in supplying electric poles, water pipes and other equipment to the electors to gain their support in the elections to the Assembly. It is an example of corruption and malpractice in the elections. The P.P.P. For A.J.K. Has also undertaken "Social Action and Baitulmal Programme" in A'.J.K. But the parties and their leaders are deeply involved in corruption and malpractice to win the elections. It is quite unfair rather cruel to the franchise and the institution of Democracy. But ultimately it is bound to effect the liberation movement in the State.
(12) That non-petitioner No,2 as the President of A.J.K. Also took notice of the facts listed above and concluded that non-petitioner No,1 was badly involved in corruption, abuse of power, mal- administration and malpractice resulting in misconduct and breach of trust. He sorted out the allegations and prepared a charge-sheet against non-petitioner No,1. The original charge-sheet was delivered by non-petitioner .N6.2 to non-petitioner No,1 through the diplomatic bag as such it was not traceable and openly known. But the truth of -the matter is that the spirit and nature of the charge was publicized through the print media. Some of the utterances available as recorded are cited in the shape of press clippings. These are copies of "Daily Jang, Rawalpindi" as Annexure A, dated February 1, 1995, B, dated nil, C, dated February 3, 1995, D, dated nil E, dated February 24,, 1995, i, dated February 26, 1995.. The press statement of non-petitioner No,2 pertaining to the maladministration and misconduct of non-petitioner No,1, provides ample proof in support of the aforesaid averments.
(13) That it is publicly noticed that non-petitioner No,1 has developed special relations with foreign powers; particularly he undertakes frequent visits to U.K. And U.S.A. In both the countries he has posted his political and diplomatic advisors. Mr. Z.U. Khan has been his advisor overseas in U.K. He has been meeting the diplomats of some foreign countries quite frequently. There are allegations and rumors- in the public that non-petitioner No,1 has collusion with foreign forces. Some politicians dub him as foreign agent. Mr. Sultan Mehmood Choudhary, President, P.P.P. A.J.K. Has publicly alleged that non-petitioner No,1 has been meeting Bheem Singh (a doubtful character, labelled as agent of RAW). His statement appeared in "Daily Jang", Rawalpindi, dated April 23, 1996.
The copy is attached as Annexure 'G'
(14) That non-petitioner No,2 very recently colluded with non-petitioner No,1 by political bribe in shape of his nomination and candidature for the office of President of A.J.K., for the next term. Thus, the non-petitioner No,2 became accomplice. Both the non-petitioners stoop an equal footing for committing misconduct and breach of trust.
(15) That under the provisions of section 24 of the Interim Constitution Act, 1974, qualification and disqualification for member of the Assembly have been described. The A.J.K. Legislative Assembly Elections Amendment Act, 1987, describe additional disqualification. Among these, it is postulated under section 3(2) that a person shall be qualified to be elected as a member of the Assembly if "he is sagacious, righteous, honest, ameen and not profligate".
(16) That under the relevant law, the non-petitioners Nos.1 and 2 have lost the qualification in view of the points listed above. Thus, once they are found to possess either of the prescribed qualifications, they are obviously deprived of their position to hold the office of P.M. And President and to exercise powers and authority and enjoy the position, post office and status as such. They have to explain as to under what authority of law they claim to hold the office of P.M. And President.
(17) That by virtue of losing the qualifications to continue.As members of Assembly and thereby P.M.
And President, the non-petitioners are disqualified even for next general elections to the Assembly or for that matter to the office of the P.M. And President, A.J.K.
(18) That there is no other forum or adequate remedy available under law to seek accountability of the non-petitioners. It is, therefore, deemed expedient to invoke the Constitutional jurisdiction of this Hon'ble Court.
(19) The above may be summed up as grounds for the relief as under:--
(i) That non-petitioner No,1 being directly responsible for the corruption in services maladministration and malpractice throughout A.J.K. Has been administering A.J.K. By the proxy (through Attique Ahmed, his son), also being guilty of acting as privy and puppet of foreign influences;
(ii) that non-petitioner No,2 being privy and partisan to non-petitioner No,1, in his misconduct and maladministration being equally guilty of said violations;
(iii) that non-petitioners Nos.1 and 2 having lost and being devoid of the requisite qualifications to continue to as members of A.J.K. Assembly and thereby as P.M. And President are unfit and unworthy to be reelected as such."
3. The non-petitioners have also filed the parawise comments upon the petition denying the charge levelled in the petition, besides raising the preliminary objection to the maintainability of the petition.
4. Farooq Niazi petitioner has argued the case himself and has reiterated almost all the grounds as listed in the petition. If the allegations and arguments, at all, are found of any substance, those would require enquiry and proof and if found true, would result in disqualification of non-petitioner No,1 and others mentioned in the petition, but not arrayed as party in the petition. If a person holding the office of Member of the Assembly has, after his election, become disqualified as alleged by the petitioners, the question has to be decided by the Chief Election Commissioner on a reference made by the Speaker of the Assembly. Subsection (2) of section 25 of the Interim Constitution Act, 1974 which regulates the matter, is as follows:-- "Subsection (2) of section 25.--If any question arises whether a Member of the Assembly has, after his election become disqualified from being a member of the Assembly, the Speaker shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member and his seat shall become vacant."
5. The jurisdiction of the Court, under section 44 of the Interim Constitution Act, 1974 under which this petition is filed is regulated under subsection (2) of section 44 of the Interim Constitution Act, which, to the extent, relevant here, is reproduced as under:- "44 (2). Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law---."
6. The jurisdiction of the High Court under section 44 of the Interim Constitution Act, 1974 being subject to other provisions of the Constitution, the Court cannot enter into the functions which the petitioners want it to do, in view of subsection (2) of section 25 of the Constitution referred to above, where such a jurisdiction basically vests in the Speaker and the Chief Election Commissioner.
7. In view of the bar of jurisdiction, the writ petition is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.