1. ' BASHARAT AHMAD SHAIKH, J.---The facts giving rise to the above noted two petitions for leave to appeal arising out of the same judgment, are that the petitioner-Company imported machinery for setting of a spinning mill at Mirpur (Azad Jammu and Kashmir). Under an exemption granted under the (Pakistan) Customs Act no import duty was chargeable on the machinery imported by the petitioner Company. However the Customs authorities at Karachi demanded five percent surcharge, imposed under the (Pakistan) Finance Ordinance, 1982 as well as five per cent. Iqra surcharge imposed under the (Pakistan) Finance Act, 1985. On behalf of the petitioner-Company it was represented to the Customs authorities at Karachi that custom duty was not leviable on the machinery being imported by it and, therefore, additional custom duty by way of surcharge and Iqra surcharge was also not payable. The position adopted by the petitioner-Company was rejected by the authorities. Writ petition was filed in the Lahore High Court Rawalpindi Bench by the petitioner-Company seeking a declaration that the denial of exemption from payment of surcharge and Iqra surcharge by the Central Board of Revenue and Custom authorities at Lahore and Karachi was without lawful authority and of no legal effect. The writ petition was dismissed on 1st July, 1989. Appeal taken to the Supreme Court Pakistan also met the same fate. It was by the Supreme Court of Pakistan on 2 October, 1990 that exemption granted to 1 petitioner-Company was from the duty payable under the Customs Act but 1 surcharge and Iqra surcharge were being demanded from the petitioner-Company h been imposed by separate enacted mentioned above.
2. ' Thereafter, another round litigation was initiated by the petition Company which this time chose the Azad Jammu and Kashmir High Court as the form from which relief was to be sought. A was petition on the same lines as had been instituted in the Lahore High Court was filment in Azad Jammu and Kashmir High Court on 29th March 1992. This writ, petition '74/' however, withdrawn and another writ NA filed on 25th November, 1992 with some modifications. This writ petition has been dismissed on 16th of February, 1998.
3. ' The following seven respondent were arrayed in the writ petition:---
(1) National Bank of Pakistan Me Branch Mirpur (AK) through Manager.
(2) The Central Board of Revenue Pakistan through its Secretary Islamabad.
(3) The Collector of Custom (Appraisement) Custom Hot Karachi.
(4) The Assistant Collector of Custom (Appraisement) Debenture Center Karachi.
(5) Azad Jammu and Kashmir Counsel through its Secretary Islamabad.
(6) Azad Jammu and Kashmir Government through Secretary Finance Muzaffarabad (A.K.).
(7) Government of Pakistan through Secretary Finance Islamabad.
4. ' When writ was filed in the Lahore High Court, a stay order was issued on furnishing of a Bank guarantee by the National Bank of Pakistan. In the writ petition filed in Azad Jammu and Kashmir High Court National Bank of Pakistan was arrayed as a respondent so that the Bank may not en cash the Bank guarantee to the Custom authorities.
5. ' The reliefs which were sought in the writ petition may be usefully reproduced:--- "It is very humbly prayed that appropriate writ, in favour of petitioner, and against the respondents, may be issued to:---
(1) The respondents 1 to 4 quashing/declaring the Bank Guarantees annexed P/IX/(1 to 3), on account of Surcharge/ Iqra Surcharge demands, dated 14-1-1988, 19-1-1988 and 16-2-1988 as ineffective and null and void.
(2) To the respondent No, 4 declaring the Detention order/notice, dated 8-12-1991 as illegal, ineffective and without lawful authority.
(3) Any other appropriate relief which, this, Honourable Court deems fit may also be granted."
6. From the foregoing it is clear that the main relief was sought against Central Board of Revenue, the Collector of Customs Karachi and the Assistant Collector of Customs Karachi. The relief sought from the Court was based on the plea that the Customs authorities were unlawfully demanding the surcharge and Iqta surcharge from the petitioner-Company. It was pleaded that the machinery was in transit across Pakistan to Azad Kashmir. The High Court has dismissed the writ petition on the ground that although Azad Kashmir is not a part of Pakistan yet it is not a foreign territory.
7. ' These petitions for leave to appeal initially came up for hearing before one of us (Basharat Ahmad Shaikh, J.). After a brief hearing it was found unusual that actions of the Custom authorities in Pakistan had been challenged in Azad Jammu and Kashmir. The learned counsel for the petitioner-Company was asked to satisfy the Court as to how the writ petition was maintainable in Azad Jammu and Kashmir against an action taken by Custom authorities at Karachi who were working under the authority of the Government of Pakistan while implementing laws enacted by the Federal Legislature. The case was adjourned to enable the learned counsel to prepare the point. Larger Bench was also constituted in view of the importance of the matter.
8. ' We have heard Ch. Muhammad Afzal, learned counsel for the petitioner-Company, at some length but, in spite of his best efforts the learned counsel has failed to show to us that the writ petition filed by the petitioner-Company is maintainable in Azad Jammu and Kashmir High Court.
9. We may state the reasons as under.
10. ' The jurisdiction of the Azad Jammu and Kashmir High Court to hear writ petition has been conferred by section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The relevant part of the section s reproduced below: 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 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
(ii) 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) [
(c) [ (3)
(4) 1 (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.
11. ' Clearly a writ petition under Azad Jammu and Kashmir Interim Constitution Act, 1974 is maintainable only against a person performing functions in connection with the affairs of Azad Jammu and Kashmir, apart from local authorities. As to the meaning of the phrase "functions in connection with the affairs of Azad Jammu and Kashmir", it has been explained by this Court in Federation of Pakistan v. Malik Muhammad Miskeen and others (1995 SCMR 43). It was a case in which a writ petition was filed by some residents of Northern Areas asking for a direction to the Government of Pakistan that the administration of Northern Areas be handed over to the Azad Government of the State of Jammu and Kashmir. It was held by this Court that in the circumstances of the case a writ was not maintainable against the Government of Pakistan because a writ could only lie against Government of Pakistan, if it is performing functions under the Azad Jammu and Kashmir Interim Constitution Act, 1974. Out of the elaborate judgment of this Court the following paragraph precisely sums up the view taken by the Court:- "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. 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 the offices of Government of Pakistan are located beyond the territorial jurisdiction of Azad Jammu and Kashmir".
12. ' On this point this Court made the following observations in Muhammad Rashid Choudhry v.
13. Chairman AKLASC Muzaffarabad and others (1993 PLC (C.S.) 1201):--- "Therefore, we are disposed to think that in order to resolve this question the acid test should not be whether a particular function is a function of the State or but it should be whether in V x performance of that function so, reign or public power is being exercised. If it is being exercised, it should be sufficient to conclude that the concerned person is performing functions in connection with the affairs of the State/Azad Jammu and Kashmir. The reason which persuades us to reach that conclusion is that it is the Legislature which determines as to what functions are to be performed by the other organs of the State. When the Legislature authorizes the Government through a law to set up a statutory corporation or authority to perform a particular function, under some kind of official control as may be found necessary, such corporation or authority exercise sovereign power in performance of its functions. It, therefore, follows that it performs functions in connection with affairs of the State/Azad Jammu and Kashmir."
14. From the foregoing it is clear that a writ in Azad Jammu and Kashmir is maintain ab only against a public functionary exercising sovereign or public power of Azad Jammu and Kashmir. In the present case the functionaries against which relief is sought by the petitioner-Company were not exercising sovereign or public power of Azad Jammu and Kashmir. They were performing functions in connection with affairs of the Federation as they, being functionaries of Government of Pakistan, demanded surcharge or Iqra Surcharge imposed by Federal laws. Thus, a writ petition was not maintainable in Azad Jammu and Kashmir High Court.
15. ' Ch. Muhammad Afzal referred us to "Theory of Nexus" from Bassu's commentary on the Constitution of India. The theory is based on Article 245 of the Constitution of India which lays down as follows:--- "(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation."
16. ' There is no provision in the Azad Jammu and Kashmir Constitution Act. On the same lines as Article 245 reproduced above. Therefore, the theory is not relevant. This argument even otherwise is not relevant because no Azad Jammu and Kashmir law has been cited which has been made applicable to the Customs authorities at Karachi and Lahore.
17. ' It was then argued by the learned counsel for the petitioner that (Pakistan) Customs Act has been extended to Azad Jammu and Kashmir by the Azad Jammu and Kashmir Council. Extension of Customs Act is not relevant for deciding of the point of jurisdiction under consideration. The learned counsel also referred to an averment in the written statement filed by the Customs authorities that they were also functioning on behalf of the Azad Jammu and Kashmir Council.
18. Even if it is the Custom authorities in the present case are not acting on behalf of the Azad Jammu and Kashmir Council but acting under laws made by the Federal Legislature by which surcharge and Iqra surcharge were imposed. The Azad Jammu and Kashmir Council does not figure any where in realization of these surcharges.
19. ' The writ petition has been dismissed for different reasons. The petitioner-Company prays for leave to appeal to challenge the order passed by the High Court so that the petition is revived. The leave can only be granted if we are satisfied that it is maintainable. Since we have reached the conclusion that writ petition filed by the petitioner-Company was not maintainable, there is no point in examining the reasons recorded by the High Court in dismissing the writ petition. Therefore, we leave the questions decided by the High Court to be considered in a case in which we are called upon to answer them.
20. ' Apart from the main petition there is another petition for leave to appeal which has to be disposed of. The writ petition in the Azad Jammu and Kashmir High Court was initially filed on 29th of March, 1992 but it was withdrawn on 8th November, 1992 with permission of the Court. However, no written application was moved and prayer for withdrawal was verbal. The High Court, while accepting the prayer for withdrawal, did not state that the petition was being allowed to be withdrawn with permission to file a new petition. Five years later a question arose whether the new writ was maintainable because permission had not been obtained for filing a new writ. It was submitted on behalf of the petitioner-Company that in fact a verbal request was made securing the aforesaid permission. Then an application was moved on behalf of the petitioner-Company that the order of withdrawal passed on 8th of November, 1992 may be amended under sections 151, 152 and 153 of the Code of Civil Procedure so that permission for filing new writ may be incorporated in the order of withdrawal. This application has been rejected in the High Court and P.L.A. No,43 of 1998 has been filed to challenge that rejection. In light of the view, we have formed in the main petition, no issue is left to be decided in this petition, namely, P.L.A. No,43 of 1998.
21. ' Both the petitions are, therefore, dismissed.