' Through this writ petition, the petitioners have prayed that the State-Subject Certificate issued by the District Magistrate, Muzaffarabad, respondent No,6, on 14-3-1996 in favour of respondent No,1, vote No,210 in electoral roll for LA-38, Valley 4, Jammu and Kashmir refugees, the order of the Returning Officer, respondent No,3, dated 2-6-1996 and that of the Chief Election Commissioner, respondent No,2, dated June 8, 1996, for having accepted his nomination papers and the notification, dated July 14, 1996 whereby he was declared a returned candidate, may be declared illegal, without jurisdiction and also to declare him disqualified to contest the election from any constituency of Azad Jammu and Kashmir Legislative Assembly. A prayer was also made to issue necessary directions to the Chief Election Commissioner, respondent No,2, to hold fresh elections in the aforesaid constituency.
2. The facts as stated in the writ petition, are that the petitioners, Abdus Salam Butt and Shah Ghulam Qadir, and respondent No,1, Iqbal Razzaq Butt filed their nomination papers from the Constituency LA-38, Valley-4, for election as member to the Azad Jammu and Kashmir Legislative Assembly (hereinafter to be referred as Legislative Assembly), Petitioner No,1, raised objections to the acceptance of nomination papers of respondent No,1, before the Returning Officer, respondent No,3, on the ground that he was not qualified to be elected as a Member of the Legislative Assembly, under the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as the Constitution) and under the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 (hereinafter to be referred as the Ordinance) as he was not a State Subject. The Returning Officer, respondent No,3, rejected the objection and an appeal with the Chief Election Commissioner, respondent No,2, also met the same fate. The nomination papers of respondent No,1, were accepted on the basis of State Subject Certificate issued by the District Magistrate, Muzaffarabad, respondent No,6, and his name having been registered as voter in the electoral roll prepared for the refugees of Kashmir Valley settled in Pakistan. Subsequently, the relevant respondent was declared a returned candidate from the aforesaid constituency and a notification to that effect was also issued.
3. Initially, the writ petition was filed to challenge the State Subject Certificate issued by the District Magistrate, Muzaffarabad, respondent No,6, in favour of respondent No,1, his vote in the electoral roll for the said constituency, the order of Returning Officer, respondent No,3, and that of Chief Election Commissioner, respondent No,2, but subsequently, through an amendment made before the admission of the writ petition, the notification declaring respondent No,1 as returned candidate, was also challenged.
4. Shah Ghulam Qadir, respondent No,4 was transposed as petitioner No,2, on an application moved on his behalf for the purpose.
5. Raja Muhammad Hanif Khan, the learned counsel for the petitioners raised the following points in support of the petition:--
(i) That respondent No,1, was not a State Subject of Jammu and Kashmir as his forefathers were permanent citizens of undivided India, settled in Rawalpindi and Murree (now Islamic Republic of Pakistan). The aforesaid respondent got issued the State Subject Certificate in his name illegally and got himself enrolled as a voter in the electoral roll maintained for the constituency, LA-38, Valley-4. The said State Subject Certificate was issued on the basis of forged and fabricated verification which was against the rules and regulations. It was also explained that the said State Subject Certificate purported to have been issued on the verification of 2 social welfare officers, respondents Nos.4 and 5, was also issued illegally as the aforesaid officers were not refugees and were not authorised to verify the status of respondent No,1 being a State Subject of occupied part of Kashmir;
(ii) That the grandfather and grandmother, Ch. Karim Bux and Mst. Fatima Jan, of respondent No,1, were owners of immovable property in Tehsil Murree before 1947. The relevant record is indicative of the aforesaid position which shows that respondent No,1 's assertion of having migrated from Baramula (Kashmir) in 1947, is incorrect. The relevant record is Annexures 'D/1' and 'D/2';
(iii) That none of the family members of respondent No,1, i,e, father, mother, brothers and sisters, etc. Is entered as voter in the electoral roll. LA-38; Valley-4, who are rather enrolled in the electoral roll of Ward No,47, Municipal Corporation, Rawalpindi, Annexures 'E/1' and 'E/2'. It was emphasised that they were not State Subjects as such, were not entered in the electoral roll of the aforesaid constituency and none was issued the State Subject Certificate. Copies of the electoral rolls of LA- 38, Valley-4, Jammu and Kashmir, were also attached as Annexures 'F/1' to 'F/4';
(iv) That the particulars given by respondent no.1 in his application for issuance of State Subject Certificate and the verification purported to have been made on behalf of respondents 4 and 5, could not be relied for the purpose, or the following further reasons:--
(a) That Muhammad Naeem and Shahzad Qayyum, respondents were not refugees from the occupied Kashmir. They were born in Azad Jammu and Kashmir after 1947 and had not migrated.
(b) That the verification shown to have been made by Shah Ghulam Qadir (now petitioner No,2) was forged one and could not be relied and believed for any purpose, as he made a statement before the Returning Officer as well as the Chief Election Commissioner that he never issued any verification in favour of respondent No,1. It was also added that said Shah Ghulam Qadir also wrote a letter to the District MagistrateMuzaffarabad for having categorically denied to have issued any such verification. Therefore, the District Magistrate illegally exercised the jurisdiction and issued the State Subject Certificate in favour of respondent No,1 illegally and without jurisdiction. The State Subject Certificate was issued without any proof.
(v) That the Returning Officer and the Chief Election Commissioner wrongly relied upon the State Subject Certificate, as such, acceptance of nomination papers of respondent No,1 and later on issuance of notification for respondent No,1 as being elected, are illegal and not maintainable. The learned counsel referred to PLD 1986 SC (AJ&K) 120, PLD 1990 SC (AJ&K), 1 and 12, 1996 CLC 1551, in support of his assertion.
6. Mr. Abdul Baseer Qureshi, the learned counsel for the respondent, who was assisted by Mr. Abdullah Shah Masoodi, Advocate, while controverting the arguments addressed by the learned counsel for the petitioners, argued in the following manner:--
(i) That the writ petition is not competent as the necessary parties were not impleaded. It was emphasised that there is a complete legal procedure for registration of the vote in the electoral roll and similarly the same can be excluded under the relevant provisions of law maintained for the purpose. The petitioners did not adopt the aforesaid legal procedure, therefore, in any case, the writ petition, in absence of Registration Officer, a necessary party in the proceedings, cannot proceed;
(ii) that the State Subject Certificate was issued by the competent Authority, i,e, District Magistrate, Muzaffarabad, after due inquiry and following the necessary procedure under the State Subjects Act, 1980 and Rules made thereunder;
(iii) that any person aggrieved by the aforesaid order, can file an appeal under the aforesaid Act.
So long as the State Subject Certificate issued by a competent authority remains intact, the actions taken by the Registration Officer, Returning Officer and Chief Election Commissioner, cannot be held to be illegal or contrary to law. There can, be no better evidence of a State Subject than the State Subject Certificate for the purpose. The petitioners, on their failure to file any appeal against the aforesaid State Subject Certificate, cannot be allowed to agitate the matter through the writ petition as, in one way, they have failed to avail the alternate remedy equally adequate and in the other, the High Court in its extraordinary Constitutional jurisdiction, cannot enter into an inquiry requiring a detailed investigation, not a suitable subject for the adjudication;
(iv) that the remedy available to the petitoners in the shape of election petition, has not been availed by them, therefore, in presence of alternate remedy, the writ petition was not competent; and
(v) That the questions of facts decided by the lower Tribunals or authorities, cannot be agitated through writ petition. The learned counsel referred to AIR 1988 SC 66, PLD 1996 SC 246, PLD 1989 SC 396, PLD 1963 SC 382 and 1997 CLC 692, in support of his assertions.
7. Ch. Muhammad Azam Khan, the learned counsel appearing for the petitioners, in reply to the arguments addressed by the learned counsel for the respondent No,1, argued:--
(i) that the present writ petition has been filed wherein the qualifications of respondent No,1 for being elected as a member to the Legislative Assembly, were challenged, therefore, the only remedy available was the writ jurisdiction;
(ii) That no other adequate and efficacious remedy was available to the petitioners, as such, the impugned orders apparently illegal and void were challenged through this writ petition;
(iii) That the Registration Officer was not a necessary party, as such, in his absence, the writ petition can proceed and cannot be defeated on that score;
(iv) That the District Magistrate, respondent No,6, issued the State Subject Certificate in favour of respondent No,1, against the instructions issued by him from time to time in this regard; and
(v) That the writ petition was supported by an affidavit and other proof brought on record, while respondent No,1 failed to support his written statement by any evidence or an affidavit. The learned counsel referred to PLD 1990 Azad J&K 61, 1993 SCR 88, 1995 CLC 1761 and instructions issued by the District Magistrate on 18-3-1987, 24-3-1988, 6-3-1990 and 15-10-1990 in support of his assertions.
8. The main objection raised by the learned counsel for respondent No,1 was that there could be no challenge to the validity of the election except by way of an election petition and the manners to which such petition is presented have been embodied in the relevant law. It was contended that the jurisdiction which is created in the Election Tribunal is a special jurisdiction and should be invoked in such cases. It was added that where the right or liability created by a statute gives special remedy for enforcing it, the remedy provided by that Statute must be availed. The learned counsel contended that ordinarily, the Court, in exercise of its writ jurisdiction, declines to interfere in cases of elections because it is desirable that the decision on a matter of disputed election, as soon as possible, become final and conclusive so that the constitution of the Council or Legislature may be distinctly and speedily known. The other reason was that normally the Court also declines to enter into these questions in writ jurisdiction as in such cases serious disputes of questions of fact were bound to arise which cannot be properly decided in writ jurisdiction as the same would amount to enter into investigation of facts, not a suitable subject for adjudication. The arguments advanced by the learned counsel for the respondent were repudiated by the opposite side, on the ground that the dispute requiring adjudication cannot be resolved by the Election Tribunal in an election petition. According to the learned counsel for the petitioners, as the challenge is made to the qualifications of a candidate, as such, no other remedy lies except to invoke the Constitutional jurisdiction of this Court, through a writ petition. The learned counsel for the respondent mainly built his arguments on the strength of PLD 1963 SC 382 (Imtiaz Ahmed v. Ghulam Ali and others), AIR 1988 SC (India) 66 (Gujarat University v. Shri N.U. Rajguru and others), PLD 1989 SC 396 (Election Commission of Pakistan v. Javed Hashmi and others) and PLD 1996 SC 246 (Ch. Muhammad Ismail v. Fazalzada, Civil Judge, Lahore and others), while the learned counsel for the petitioners based his arguments on a Full Bench case (PLD 1990 Azad J&K 61) and the verdict given by the Supreme Court of Asad Jammu and Kashmir, in the same very case while deciding the application for interim relief.
9. It is worthmentioning that there is no provision analogous to Article 171 of 1962 Constitution of Pakistan, 225 of the Constitution of Islamic Republic of Pakistan of 1973 and 329 of the Indian Constitution, in the Constitution of Azad Jammu and Kashmir, which are usefully reproduced below:-- "Article 171 of 1962 Constitution of Pakistan.--(1) Sub-clause (2) of this Article, provision may be made by law:
(a) For disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission; and
(b) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose; and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law.
(2) When a person has been declared to have elected as President, the validity of the election shall not be called in question in any manner before or by any Court or Authority whatsoever.
(3) The validity of anything done by the Commissioner under Articles 160, 161 or 162, shall not be called in question in any manner before or by any Court or Authority whatsoever.
Article 225, (Pakistan Constitution, 1973) Election disputes.---No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of (Majlis-e-Shoora (Parliament).)
Article 329 (Indian Constitution) Bar to interference by Courts in electoral matters--- Notwithstanding anything in this Constitution--
(a) the validity of any law relating to the determination of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."
10. Keeping in view the aforesaid Articles under the relevant Constitutions and finding no corresponding provision in the Constitution Act, debarring the High Court of Azad Jammu and Kashmir to exercise writ jurisdiction in election matters, it can safely be held that there is no application of the authorities referred to by the learned counsel for the respondent. It may also be mentioned that in spite of these Constitutional provisions, the Constitutional jurisdiction of the High Court in appropriate cases, was not held to be barred. The proposition directly came under consideration before the Supreme Court of Azad Jammu and Kashmir in the case titled Sardar Sikandar Hayat Khan v. Syed Ghulam Mujtaba Bukhari and others (Civil Appeals No, 7 and 8 of 1990) wherein it was held as under:-- "-These arguments fail to take note of the fact that section 44 of the Azad Jammu and Kashmir Interim Constitution Act embraces and confers the jurisdiction on the High Court to issue writ petition, except the matters which are stated to be immune from the exercise of writ jurisdiction by the Constitution itself. Expression "subject to this 'Ace used in section 44 of the Interim Constitution Act, means that in order to take away the writ jurisdiction, the provisions must be in the Constitution itself and not in the subordinate legislation such as ouster is found in the Constitution of different countries. For instance, in the Constitution of India and Pakistan, as has already been pointed out in the earlier part of this judgment; identical provision pertaining to the election matters are contained in Article 225 of the Pakistan Constitution of 1973 and Article 329 of the Indian Constitution. But there is no corresponding provisions debarring the High Court of the Azad Jammu and Kashmir to exercise the writ jurisdiction in election matters. Besides, subsection (3) of section 44 specially lays down that an order under subsection (2) of this section for issuance of writ petition shall not be made on application moved by or in relation to a person in the Defence Service in respect of his terms and conditions of service.
' As has already been stated that as there is no provision analogous to Article 225 of the Pakistan Constitution or Article 329 of Indian Constitution in the Azad Jammu and Kashmir Interim Constitution Act, the jurisdiction of the High Court to exercise writ jurisdiction in case where the functionaries under the election laws act in flagrant disregard of the statutory provisions, is not ousted. A reference may be made to the case reported as Chief Election Commissioner, Azad Jammu and Kashmir v. Abdul Majid (PLD 1986 SC (AJ&K) 120) wherein writ petition against the rejection of nomination paper was accepted; the appeal to the Supreme Court by the Chief Election Commissioner was dismissed with the observations that the judicial pronouncements made by the authorities in Pakistan and India are not relevant in the said case because there was no corresponding provision in the Interim Constitution Act, 1974 debarring the High Court from exercising writ jurisdiction in case of election disputes. Initially when the learned counsel for the applicant were confronted with the aforesaid authority of this Court, they submitted that they had not read the said authority, but on the subsequent day they maintained that despite the aforesaid verdict of this Court, the correct position of law is that writ petition was not competent in case of election disputes."
12. The petitioners' case for filing the writ petition, is that it is the writ jurisdiction of this Court which is the only remedy available if a challenge is made to the qualifications 'of a candidate. It was argued that in view of the amendment of 1984, whereby subsections (a) and (b) were deleted, made in section 64 of the Ordinance, the same cannot be agitated before the Election Tribunal by way of an election petition. Therefore, it is wrong to suggest that in presence of availability of a remedy in the shape of election petition, the writ petition cannot be entertained. It may be mentioned that subsections (a) and (b) of section 64 of the Ordinance, were deleted by way of amendment. Therefore, the Election Tribunal' is not vested with the power and jurisdiction to decide the validity or invalidity of the nomination of the returned candidate or his qualifications or disqualifications. In absence of those provisions in section 64 of the Ordinance, there remains no other remedy for the petitioner exept to agitate the matter through writ petition. To appreciate the proposition, the relevant original section of the Ordinance is reproduced as under:-- "S.64.(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that--
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, Deleted. qualified for, or was disqualified from being elected as a member; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2) The election of a returned candidate shall not be declared void on the ground:--
(a) that any corrupt or illegal practice has been committed if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or
(b) that any of the other contesting candidates was, on the nomination day, not qualified for, or was disqualified from, being elected as a member."
' The proposition attracted the attention of the Supreme Court of Azad Jammu and Kashmir in the case titled 'Sardar Sikandar Hayat Khan v. Ghulam Mujtaba Bukhari and others' (Civil Appeals Nos.7 and 8 of 1990), wherein it was laid down as under:-- ' "---The provision of law extracted above shows that the Election Tribunal cannot set aside the election of a returned candidate if his nomination paper had been illegally accepted or if he was not qualified to be elected as a member. It shows that the petitioner cannot raise the present controversy before the Election Tribunal. It cannot, therefore, be said that the non-petitioners had any othei remedy available to them. It we add to it the fact that no Election Tribunal is in existence today, the matter assumes greater importance.--- ' ----It is evident that after deleting the aforesaid provisions by amendment, no remedy is available by resorting to Election Tribunal in case of rejection or acceptance of the nomination paper and, thus, the aforesaid authority does not help the case of the applicant; rather the amendment negates the validity of the arguments of the learned counsel for the applicant that where alternative remedy is available, writ jurisdiction cannot be invoked."
' Relying upon the aforesaid authorities, in the light of law dealing with the election petition, it is held that the petitioners have no other remedy, what to speak of adequate one.
12-A. The authorities referred to above by the learned counsel for the respondent, are of no avail to him in the background of law prevailing in Azad Jammu and Kashmir. It would be useful to mention that the authority, PLD 1963 SC 382, which deals with the election matter, also did not debar the writ jurisdiction where actions are characterised as being done in bad faith in exercise of public power with a majority judgment and the minority view in spite of the Constitutional provisions, gave the verdict in favour of filing the writ petition. The other case, AIR 1988 SC (India) 66, also did not debar the writ jurisdiction while dealing with the matter of election in the University, to be referred to the State Government under section 58 of the relevant Act and held that originally the remedy provided by the statute must be followed before the authority designated therein, but there may be cases where exceptional and extraordinary circumstances may exist to justify bypassing the alternate remedies. The other case, PLD 1996 SC 246, arose out of a suit brought by the petitioner wherein an objection with regard to the adequate remedy available in the shape of appeal was raised. The appeal filed against the order of High Court dismissing writ petition, was upheld by the Supreme Court through this judgment. Similarly, the case, PLD 1989 SC 396, was decided in the light of Article 225 of the Pakistan Constitution discussed above, as such, has also little relevance for the purpose of proposition in hand.
13. Next, it is to be determined whether respondent No,1 is a State Subject and District Magistrate, Muzaffarabad, respondent No,6, exercised the correct jurisdiction in granting the State Subject Certificate in his favour. The State Subject is defined in the Azad Jammu and Kashmir Interim Constitution Act, 1974, in the following words:-- ' "State Subject' means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the late Government of the State of Azad Jammu and Kashmir Notification No,I-L/84, dated the 20th April, 1927 as amended from time to time."
' The Notification No,I-L/84, dated April 20, 1927, quoted in 1997 SCR 108, while answering the President's Reference No,1 of 1996, decided on March 19, 1997, is reproduced below:- "NOTIFICATION Dated, the 20th April, 1927.
' No,II-L/84--The following definition of the term 'State Subject' has been sanctioned by His Highness the Maharaja Bahadur, vide Private Secretary's Letter No,2354, dated the 31st January, 1927, to the Revenue Minister of Council and is hereby promulgated for general information:-- ' CLASS I: All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur, and also persons who settled therein before the commencement of Samvat year 1942, and have since been pemanently residing therein.
' CLASS II: All persons other than those belonging to Class I who settled within the State before the close of Samvat year 1968, and have since permanently resided and acquired immovable property therein.
' CALSS III: All persons, other than those belonging to Classes I and H permanently residing within the State, who have acquired under a Rayatnama any immovable property therein or who may hereafter acquire such property under an Ijazatnama and may execture a ayatnama after ten years' continuous residence therein. ; CLASS IV: Companies which have been registered as such within the State and which, being companies in which the Government are financially interested or as to be economic benefit to the State or to the financial stability of which the Government are satisfied, have by a special order of His Highness been declared to be the State Subjects."
' It would clarify that on April 20, 1927, the Ruler of Jammu and Kashmir State who was called His Highness the Maharaja Bahadur, sanctioned the definition of term "State Subject" and it was promulgated through a notification reproduced above by which the State Subjects were divided in three classes, namely Class-I, Class-II and Class-III, while the other Class, i,e, Class-IV was subsequently added to give status as State Subject to certain Companies registered within the State, alongwith some other amendments.
14. The Azad Jammu and Kashmir State Subjects Act, 1980 was enacted to regulate the law provided for issuance of State Subject Certificates. The rules under the aforesaid Act, were also framed on July 8, 1980. Subsection (c) of section 2 of the Act provides:-- "(a) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx
(b) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx
(c) 'State Subject Certificate' means a State Subject Certificate issued under the rules relating to the issue of such certificates."
' Section 3 of the aforesaid Act provides as follows: "3 Construction of references to 'Government', in laws, relating to State Subiects.--- In the late Government of the State of Jammu and Kashmir Notification No,I-L/84, dated the 20th April, 1927, and in all subsequent orders and rules relating to the definition of 'State Subject', the expression 'Government' or any other expression, howsoever worded, referring to executive Government shall, so far as practicable, be constructed to refer to the Council."
' The relevant rule 4 of the Azad Jammu and Kashmir State Subjects Rules, 1980, is also reproduced as follows:-- "4 State Subiect Certificate.---(1) Any person claiming to be a State Subject may be granted a State Subject Certificate by the District Magistrate concerned in the manner prescribed below:--
(a) He shall apply in Form ' A' (Appendix I) in duplicate to a Magistrate of the First Class. This application shall be supported by---
(i) a certificate of birth of the applicant or any of his parents or, grandparents, as the case may be issued by:
(1) A village officer or an officer-incharge of a police station.
(2) A Municipal or Town Committee of Corporation; or
(3) A Registrar of Births and Deaths; and
(ii) documents in support of the statements made in the application.
(b) The Magistrate shall, in attestation of the truth of the statement in the application, administer an oath or affirmation to the applicant and shall examine the evidence, oral or documentary, adduced by the applicant in support of his claim. He may, if he thinks it necessary, summon and examine any other witness likely to know the facts of the application and may call for any record relevant to it.
(c) The Magistrate shall forward the application with his recommendation to the District Magistrate concerned.
(2) The District Magistrate shall either reject the application or grant a State Subject Certificate in Form 'A-I' (Appendix-II)
(3) Any person aggrieved by an order passed under sub-rule (2) may prefer an appeal to the Azad Government of the State of Jammu and Kashmir within thirty days and the Government may pass such order as it deems fit."
15. It was contended by the learned counsel for the petitioners that the District Megistrate, Muzaffarabad, respondent No,6, did not exercise the correct jurisdiction vested in him. It was explained that respondent No,1 applied through an application accompanied by an affidavit which contradicted each other. The verification was made by two Social Welfare Officers, Muzaffarabad who were not refugees, as such never migrated and were born after 1947, therefore, could not verify the status of respondent No,1. The aforesaid officers were falsely shown as residents of Baramula (Occupied Part of Kashmir). It was also contended that the verification was also shown to have been made by Shah Ghulam Qadir, the then Minister Incharge of Social Welfare Department who has categorically denied to have issued any verification in this regard, through a letter dated 3-6- 1996 written to the District Magistrate, Muzaffarabad, respondent No,6 and also stated before the Returning Officer, respondent No,3 and Chief Election Commissioner, respondent No,2. The counsel for respondent No,1 controverted the arguments on the ground that the District Magistrate, respondent No,6, issued the State Subject Certificate on his satisfaction that matters which is the requirement of law.
16. A perusal of the record shows that respondent No,1 moved an application on Form-A, Annexure 'C', on 27-12-1995, for issuance of State Subject Certificate, in his favour, supported by an affidavit, Annexure 'C/6'. No other document except a photostat of the National Identity Card was filed. The verification dated 25-1-1996 was issued on behalf of two Social Welfare Officers, Muhammad Naeem and Shahzad Qayyum, respondents Nos.4 and 5, in which they were shown to be the previously residents of Baramula (Occupied Part of Kashmir), Annexure 'C/2'. Their joint statement, Annexure 'C/3' in this respect was also recorded on March 5, 1996. Another .Verification dated June 20, 1996 on behalf of Shah Ghulam Qadir, the then Minister, now petitioner No,2 herein, was also filed in support of the application. It may be mentioned that both the above-referred Social Welfare Officers moved an application accompanied by an affidavit, before this Court that they were not refugees and never migrated from Occupied Part of Kashmir but were residents of Azad Jammu and Kashmir. It was also added that they never appeared before S.D.M., Muzaffarabad and they were wrongly shown to be residents of Baramula (Occupied Kashmir). It was further stated that the verification was made by them on the persuasion of a driver namely Zahid Sheikh, of their office, who was already having the verification shown to have been made by Shah Ghulam Qadir, the then Minister, which persuaded them to do the same. It was further stated that the aforesaid driver told them that the requisite verification was required for financial aid from Zakat' fund. The other verification shown to have been issued by Shah Ghulam Qadir, petitioner No,2, was also categorically denied by him to have issued the same and a copy of letter dated 3-6-1996 issued by him to the Deputy Commissioner (District Magistrate), Muzaffarabad, for the false and fabricated verification in his name, was also appended with the petition as Annexure 'C/5'. This was the sum total of the evidence on the basis of which the impugned State Subject Certificate was issued. Another factor requiring consideration is that the petitioners made assertion in the writ petition that respondent No,1 was not a State Subject. It was contended by them that respondents No,1 's family members were the old citizens of united India (now Islamic Republic of Pakistan). It was also added that none of them was issued the State Subject Certificate or entered as a voter in the electoral roll maintained for refugees settled in Pakistan, except respondent No,1 who was only entered as a voter in the amended electoral roll of the Constituency LA-38, Valley-4. The petitioners in support of their claim also filed record of the property existing in the name of Ch. Karim Bux, claimed to be grandfather of respondent No,1, in the year 1945-46, in Murree (Pakistan), Annexure '
D/1' and the other record of the property for the same year was shown in the name of Mst. Fatima Jan, the grandmother of respondent No,1, in Rawalpindi, Annexure 'D/2'. The petitioners also filed copies of the electoral rolls of Ward No,47, Municipal Corporation, Rawalpindi, Annexures ' E/1' and 'E/2', showing respondent No,1 and his other family members as voters entered therein. The electoral roll maintained for the refugees of Kashmir settled in Pakistan, was also filed as Annexures 'F/1', 'F/2' 'F/3' and 'F/4', showing none of the family members of respondent No,1 entered as voter except respondent No,1 who was entered in the amended electoral roll of 1996, Annexure 'F/2'. It is worth-mentioning that the petitioners have supported their writ petition through an affidavit while respondent No,1 while contradicting the petitioners' assertions, did not file any documentary proof or an affidavit in support of his written statement.
17. The analysis of the aforesaid state of facts leads to the conclusion that the S.D.M. Or District Magistrate had no evidence forming the basis of his satisfaction in issuing the relevant State Subject Certificate. Keeping in view the nature of verifications, particularly by the persons who were not refugees and were residents of Azad Jammu and Kashmir territory, born long after the War of Liberation of 1947, it is satisfied that the S.D.M. Or the District Magistrate Muzaffarabad, had no evidence satisfying them to exercise jurisdiction in issuing the requisite Certificate in the light of law applicable, described above. The relevant Authorities ignored the instructions issued in this regard on 18-3-1987, 26-3-1988, 6-3-1990 and 15-10-1990 which provided particularly for the issuance of State Subject Certificate in favour of a refugee. It was specifically noted that there must be some record supporting the application and the verification must be made by the refugee Gazetted Officers having migrated from the Occupied area, alongwith other conditions necessarily to be satisfied. It implies that the S.D.M. Or the District Magistrate did not apply his mind and failed to follow the mandatory provisions of law. Therefore, it can safely be held that the District Magistrate, Muzaffarabad did not exercise correct and legal jurisdiction in issuing the aforesaid Certificate.
18. It may also be added that the petitioners in the present proceedings have brought on record the evidence in support of their assertion that respondent No,1 was not a State Subject and is a citizen of Pakistan. In support of the above assertion, it was brought on record that none of the family members of respondent No,1 was entered as a voter in the electoral roll maintained for the refugees of. Kashmir settled in Pakistan or issued the State Subject Certificate except respondent No,1 who was lately registered in the amended electoral roll for the year 1996. It was also brought on record that the grandfather and grandmother of respondent No,1 were holding the property before 1947 in District Rawalpindi which shows that respondent No,1 's assertion of his family having migrated from Occupied Kashmir in 1947, did not ring true. Though the fact of having the property in the name of fore-fathers of respondent No,1 before the War of Liberation and the non- registration of the name of his family members as voters in the refugees' electoral roll and appearing in the electoral roll of Municipal Corporation, Rawalpindi, is not a sufficient proof for holding the respondent No,1 as non-State Subject, but the fact remains that respondent No,1 while repudiating the petitioners' assertion, failed to offer any documentary proof/evidence and even his written statement did not appear to be supported by an affidavit, particularly when the inference of above facts goes against him. An affidavit, ordinarily, is considered sufficient in a writ petition if not rebutted by any cogent evidence or affidavit. The proposition finds support from Muhammad Sharif Khan's case (1993 SCR 88), wherein it was observed as under:--
19. "---Affidavit is considered sufficient in a writ petition prima facie proof I and if not rebutted by cogent evidence, it becomes conclusive proof."
20. Now, it requires to be seen whether in Constitutional jurisdiction, the State Subject Certificate issued by the concerned authority, can be assailed, particularly when the relevant Act also provided an appeal against the order which, according to the respondent, was an adequate alternate remedy. It has been held more than once by this Court and the Supreme Court of Azad Jammu and Kashmir that the remedy provided by way of an appeal under the State Subjects Act is not an efficacious remedy. It has also been held that if the District Magistrate while exercising the jurisdiction under the. Aforesaid Act, travels beyond the limitations prescribed by law, the writ petition can be attracted. Reliance is placed on Attaullah Atta's case (1996 CLC 1551), wherein the following observation was made by the learned Judges in the Supreme Court of Azad Jammu and Kashmir:-- "-After giving our consideration to the matter we agree with the explanation of the learned counsel that the remedies before the Government or the Council were not adequate in the circumstances of the case. The High Court has rightly held that it was common experience that such matters are not decided by the Government and the Council with necessary despatch. We may observe that delay in the present case would have created unnecessary complication because if the decision was to go against the appellant, he would have been displaced from the post of Assistant Commissioner after serving for a considerable time. Then the disputes about domicile certificate and the appointment based on it are interwoven matters and writ petition was the only efficacious remedy.
' After hearing the learned counsel for the appellant we are convinced that the reasons recorded by the High Court for accepting the appeal are weighty and cannot be differed with. According to rule 7 of the Azad Jammu and Kashmir State Subjects Act, 1980, a District Magistrate can issue a certificate of domicile in favour of a person if it is proved to him that the applicant had been continuously residing in Azad Jammu and Kashmir or a period spreading over five years. Proof in support of five years' residence in Azad Jammu and Kashmir was not furnished. It has been rightly pointed out by the High Court that the appellant stated that he had been living in Ambore for 39 years since 1947, but his age at the time when he made the application, was only 20 years. The claim of residence made by the appellant stood falsified when the appellant produced two witnesses. They did not state that the appellant had been living in Ambore or any other place in Azad Kashmir, continuously for more than five years.---"
' The proposition also came under consideration before this Court in the case titled 'Muhammad Faisal Rabbani v. Azad Government and others' (Write Petition No,53 of 1992, decided on 12-10-1992) wherein the learned Chief Justice while deciding the proposition dealing with alternative remedy available under the State Subjects Act, 1980, observed as under:-- "7. The law provides that alternative remedy must be adequate are efficacious. Mere presence of alternative remedy is not sufficient to deny an aggrieved person the requisite relief, permissible through writ petition. The learned counsel for the respondents was unable to satisfy that the alternative remedy in the shape of an appeal before the Government was equally efficacious. In this view of the matter, despite presence of alternative remedy unless it is found efficacious, the petition cannot be dismissed on this sole ground. In an identical situation, the relief in the shape of nomination against the reserved seats in Pakistan Professional Medical Colleges was granted by this Court in exercise of its writ jurisdiction, in Imran Rauf's case, decided on December 24, 1991. The objection is, therefore, repelled.
' The next objection pertains to detailed inquiry into the question of facts relating to alleged deception made by respondents Nos.3 and 4, in order to secure State Subject Certificates from the District Magistrate Mirpur, in their favour. No doubt that the Courts are reluctant to entertain the controversy in exercise of writ jurisdiction where necessary detailed inquiries are warranted but this is not an inflexible rule. When the Court is satisfied that an injustice has been caused to a citizen and his grievance cannot be redressed otherwise, it is permissible to redress the grievance of such person in exercise of writ jurisdiction, by adopting the inquiry into the question of facts. It is purely a discretionary matter."
20. It was contended by the learned counsel for the answering respondent that the Registration Officer was a necessary party in whose absence the writ petition could not proceed. It may be stated that the petitioners unsuccessfully raised the objection in respect of qualifications of respondent No,1 before the Returning Officer an Chief Election Commissioner who were impleaded parties in the proceedings. The Registration Officer, in any circumstance, was not a necessary party particularly after the resolution made in respect of the impugned State Subject Certificate.
21. It is pertinent to mention that the High Court while exercising writ , jurisdiction 'should not assume that role of Court of appeal but the findings of a Tribunal of special jurisdiction are not immune from challenge if those are patently wrong or based on non-reading, misreading or no evidence at all. The view that a Tribunal having the jurisdiction to decide a matter is competent to C decide rightly or wrongly, requires modification. The matters requiring deep scrutiny of evidence or deep probe are held not to be a suitable subject of adjudication in writ petition but the findings given by the special Tribunal can be assailed if those are found illegal or based on inadmissible evidence. Reliance may be placed on PLD 1986 SC (AJ&K) 120) Chief Election Commissioner, AJ&K v.
Abdul Majid and others), wherein it was laid down as under:-- "---S.44---Circumstances under which the findings given by a Tribunal of special jurisdiction can be assailed by invoking writ jurisdiction of High Court stated.
' It is correct that there is marked difference between the appellate and the writ jurisdiction of the High Court. The High Court while exercising the writ jurisdiction, should not assume the role of a Court of appeal but all the same findings of the Tribunal of special jurisdiction are open to challenge in writ jurisdiction if the findings are patently wrong or based on inadmissible evidence or there is gross non-reading or misreading of evidence. In such cases, the error would be 'error of law' and the same can be rightly rectified in exercise of writ jurisdiction. The view that a Tribunal which has the jurisdiction to decide a matter is competent to decide a matter is competent to decide it rightly or wrongly, would hold good only in a case which involves deep scrutiny of the evidence or requires an extensive and deep probe into a statutory provision of law for its interpretation."
22. In view of the above discussion, the State Subject Certificate issued in favour of respondent No,1 is cancelled. The entry of Vote No,210 in the electoral roll maintained for refugees of Constituency LA-38, Valley-4, order of Returning Officer, respondent No,3, dated June 2, 1996 and that of Chief Election Commissioner, Azad Jammu and Kashmir, dated June 8, 1996 and Notification, dated July 14, 1996 to the extent of declaring respondent No,1 as a returned candidate, are declared to be illegal and of no legal effect, as such, are not maintainable, by accepting the writ petition. The election of respondent No,1, consequently is also declared to be null and void.