' MUHAMMAD YUNUS SURAKHVI, J---This appeal, by way of leave, has been preferred against the judgment of the High Court dated 13-4-1998, whereby the writ petition filed by respondent No,1 and 2 was accepted and the appellant was declared as non-State Subject and the State Subject Certificate issued in his favour was cancelled. In pursuance thereof the ,entry of vote No,210 in the electoral roll for refugees of constituency No,LA-38 Valley-IV, order of Returning Officer, respondent No,6, herein, dated 2-6-1996, and that of Chief Election Commissioner Azad Jammu and Kashmir dated 8-6-1996, and Notification dated 14-7-1996, whereby the appellant was declared as returned candidate from the above constituency, were declared to be illegal and of no legal effect.
Resultantly the election of appellant was declared to be null and void.
2. The precise facts, giving rise to the present appeal, are that respondents Abdus Salam Butt, Shah Ghulam Qadir and Iqbal Razzaq Butt, the appellant herein, filed their nomination papers from the constituency No,LA-38 Valley-IV, as a member to the Azad Jammu and Kashmir Legislative Assembly, (hereinafter to be referred as Legislative Assembly). Respondent No,1, Abdus Salam Butt, raised objection to the nomination of appellant before the Returning Officer 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 Election Ordinance, 1970, (hereinafter to be referred as Ordinance) as he was not a State Subject. The aforesaid objection was turned down by the Returning Officer by observing that a State Subject Certificate has been issued in favour of appellant by the District Magistrate Musaffarabad and that still holds the filed as' it has not been annualled by any competent authority till todate. The District Magistrate issued the State Subject Certificate in favour of Iqbal Razzaq Butt after necessary enquiry and the said certificate having not been declared as forged and fabricated till todate has to be believed. The name of Iqbal Razzaq Butt also appears in the electoral roll of constituency No,LA 39 Kashmir Valley-IV. The objection taken before the Returning Officer was overruled and the nomination papers of the appellant were accepted. An appeal filed by Abdus Salam Butt against the order of Returning Officer was dismissed by the Chief Election Commissioner mainly on the following grounds:-
(i) that it is undisputed that a State Subject certificate has been issued in favour of appellant by District Magistrate Muzaffarabad;
(ii) that Returning Officer or Chief Election Commissioner as an appellate authority of the Returning Officer are not the appropriate forums to give any decision on the correctness or otherwise of the above allegations made or objections raised by the respondent that the above State Subject was a fake and forged document. The right forum before which such contention or objection may be made is that authority which has the power to cancel the State Subject Certificate granted in favour of appellant; and
(iii) that the State Subject Certificate is granted by District Magistrate concerned under sub-rule (2) of Rule 4 of the State Subject Rules on the recommendation of Magistrate made after holding the necessary enquiry under Clause (C) of sub-rule (1) of Rule 4, and an appeal against the grant of the State Subject Certificate can be filed by the aggrieved person to the Government under sub- rule (3) of the said Rules. According to sub-section (2) of section 4 of the Act, it is only the Azad Jammu and Kashmir Council which can deprive any person of his State Subject Certificate; if, it is satisfied that he obtained the said certificate by means of fraud, false representation or the concealment of any material fact after fulfilling the necessary conditions laid down by the law and rules in this respect. Similarly under Rule 20 of the Rules, the Council is empowered to cancel, suspend or invalidate a State Subject Certificate. In view of the legal position stated above, once the State Subject Certificate is issued by the competent authority, it becomes conclusive proof as to the status of a person in whose favour it is issued of his being a State Subject unless the same is cancelled by the Council.
3. Respondent No,1, Abdus Salam Butt, feeling aggrieved filed a writ petition in the High Court assailing the State Subject Certificate issued in favour of appellant by District Magistrate Muzaffarabad, his vote in the electoral roll for the said constituency, the order of Returning Officer and that of Chief Election Commissioner. Subsequently through an amendment the notification declaring appellant as returned candidate was also called in question. Shah Ghulam Qadir, respondent No,4, was subsequently transposed as petitioner No,2, on the application moved on hi: behalf for the said purpose.
4. The High Court accepted the writ petition filed by respondents, Abdus Salam Butt and Shah Ghualm Qadir, on the grounds enumerated below:- "(i) that the constitutional jurisdiction of the High Court was not barred in election matters as the provisions in the Pakistan Constitution and the Interim Constitution were not corresponding so as to debar the AJK High Court to exercise writ jurisdiction in election matters. It was held by the High Court that in view of the amendment of 1984, whereby sub-sections (a) and (b) were deleted, from Section 64 of the Ordinance, the same could not 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.
(ii) that in view of amendment made in sub-sections (a) and (b) of Section 64 of the Ordinance and the same having been deleted 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 respondents except to agitate the matter through writ petition. The main reliance was placed by the High Court on the case of Sardar Sikandar Hayat Khan v. Ghulam Mujtaba Bukhari and others [Supreme Court Civil Appeal No,7 and 8 of 1990], wherein it was held by the Supreme Court of AJK as follows:- ' 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.'
(iii) that while dealing with the question of issuance of State Subject Certificate the High Court concluded that the analysis of the relevant facts leads to the conclusion that the S.D.M. Or the District Magistrate had no evidence forming the basis of their satisfaction in issuing the relevant State Subject Certificate. Keeping in view the nature of verifications, particularly by the persons who were not refugees, were residents of Azad Jammu and Kashmir territory and were born long after the War of Liberation of 1947, it cannot be said that the S.D.M. And the District Magistrate Muzaffarabad had evidence in support of requisite satisfaction. 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, along with other conditions necessarily to be satisfied. It implies that the S.D.M. Or the District Magistrate did not apply their min4s and failed to follow the mandatory provisions of law. Therefore, it can safely be Yield that the District Magistrate, Muzaffarabad did not exercise correct and legal jurisdiction in issuing the aforesaid Certificate;
(iv) that the objection with regard to the enquiry into complicated questions of facts relating to alleged deception and concealing of material facts made by appellant in order to secure State Subject Certificate in his favour and the role of preparation of whole process made by respondents No,3 and 4 in favour of appellant, though involves a detailed enquiry, and no doubt the Courts are reluctant to entertain the controversy in exercise of writ jurisdiction where necessary detailed enquiries 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 holding an enquiry into the question of facts. It is purely a discretionary matter; and
(v) that the High Court while exercising writ jurisdiction should not assume ' the rule of Court of appeal but at the same time the findings of a Tribunal of special jurisdiction are not immune from challenge if those are patently wrong or based on non-reading and misreading of evidence.
5. Kh. Shahad Ahmed, the learned counsel for the appellant, vehemently contended that the impugned order passed by the High Court was patently illegal and bad in law as the High Court had no jurisdiction, in view of the alternate adequate remedy available to the respondents. The State Subject Certificate issued in favour of appellant could be challenged not only before one but also before at least three forums. An application for cancellation of State Subject Certificate could be moved before the same District Magistrate who issued it. An appeal could also be filed before the Government and in case of failure the Jammu and Kashmir Council could be approached for cancellation of the State Subject Certificate. In presence of more than one alternate remedies the High Court was not competent to investigate the correctness of a document issued by the competent authority in exercise of the writ jurisdiction. The learned counsel also contended that there were no grounds for the High Court to entertain a matter involving detailed factual enquiry in exercising its constitutional jurisdiction which prohibits entertainment of writ petition in presence of alternate remedy. The learned counsel submitted that respondent No,2 in view of his own previous conduct of getting the State Subject Certificate issued in favour of appellant could not come with a voltaface and take altogether a different stand. This fact certainly creates a bar for filing the writ petition as the fundamental requirement for filing the writ petition is that the petitioner should come in the Court with clean hands. The High Court by relying on stand of respondent No,2 has acted in derogation of law and pronouncements of superior Courts submitted the learned counsel.
Alternatively the learned counsel contended that even if the High Court had come to the conclusion that the appellant had no alternate remedy and the writ was the only remedy available in that case the High Court was bound to make enquiry in detail and record the evidence of the Parties. It was even otherwise necessary in view of the fact that a valuable right of appellant and his status as State Subject were at stake. According to the learned counsel the deprivation of nationality is not one of hibernation but it is in fact a case of complete death which right could not be taken away by relying on fake and fabricated documents and contradictory stands. The learned counsel strenuously emphasised that the respondents before the Returning Officer made an admission that grandfather of Iqbal Razzaq Butt namely Karim Bakhsh had migrated to Pakistan 50 years prior to 1947 and if he migrated from the State of Jammu and Kashmir then irrespective of the correctness or otherwise of the assertion of respondents No,1 and 2, the grandfather of appellant and his two coming generations would continue to be State Subjects as provided under the relevant law. The appellant, according to the learned counsel, falls in the second generation of his grandfather.
6. On the other hand Raja Muhammad Hand Khan, the learned counsel for respondents No,1 and 2, controverted the arguments advanced by the learned counsel for the appellant. The learned counsel submitted that the appellant was not a State Subject of Jammu and Kashmir as his forefather were permanent citizens of undivided India settled in Rawalpindi-Murree. The appellant got issued the State Subject Certificate in his favour illegally and got himself enrolled as a voter iri the electoral roll of Constituency LA-38, Valley-IV, The said State Subject Certificate was issued on the basis of forged and fabricated verification which was against the relevant rules and law. The learned counsel explained that the State Subject Certificate purported to have been issued on the verification of two Social Welfare Officers, respondents 3 and 4, was in derogation of the relevant rules as they were not authorised to verify the staus of appellant as a State Subject. The learned counsel maintained that the family members of the appellant i.e, his father, mother, brothers and sisters were not entered as voters in the electoral roll of LA-38, Valley-IV, but instead they were entered as voters in the electoral roll of Ward No,47 Municipal Corporation Rawalpindi, and none of them was issued the State Subject Certificate. The learned counsel strenuously contended that Muhammad Naeem and Shehzad Qayyum, respondents who purportedly verified the claim of appellant, were not refugees from the Occupied Kashmir as they were born in Azad Jammu and Kashmir after 1947 and had not migrated. Similarly, the verification shown to have been made by Shah Ghulam Qadir, respondent No,2, was forged one and could not be relied and believed for any purpose as he later on resiled and informed the Returning Officer as well as raised objections before the Chief Election Commissioner that he never issued any verification in favour of appellant.
It was also claimed that Shah Ghulam Qadir, respondent No,2, also wrote a letter to District, Magistrate, Muzaffarabad 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 appellant without any jurisdiction as such the same was rightly cancelled by the High Court vide the impugned order and the notification of his success as returned candidate was set at naught.
' We have heard the arguments addressed at the Bar by the learned counsel for the parties and perused the record made available with care including impugned judgment of the High Court. In order to meet the first contention of the learned counsel for the appellant that after the issuance of State Subject Certificate in favour of appellant the respondents had adequate remedy either to move the same District Magistrate for the cancellation of the said Certificate or to move the Azad Jammu and Kashmir Council which can deprive any person of his State Subject Certificate on its satisfaction of certain conditions. Similarly according to the learned counsel for the appellant an appeal against the grant of State Subject Certificate could be filed by an aggrieved person to the Government under sub-section (2) of section 4 of the State Subjects Act, 1980. It may be stated that the powers for grant and cancellation of State Subject Certificate are enumerated in the Act known as Azad Jammu and Kashmir State Subjects Act, 1980 (hereinafter. To be referred as the Act) and the rules made thereunder which are called the Azad Jammu and Kashmir State Subject Rules, 1980 (hereinafter to be referred as the Rules). The State Subject Certificate is granted by the District Magistrate concerned under sub-rule (2) of rule 4 of the Rules on the recommendations of the Magistrate made after holding the necessary enquiry under clause C of sub-rule (1) of rule 4, and an appeal against the grant of State Subject Certificate can be filed by the aggrieved person to the Government under sub-rule (3) of the said rule. According to subsection (2) of section 4 of the Act, it is only Azad Jammu and Kashmir Council which can deprive any person of his State Subject if it is satisfied that he obtained the said Certificate by means of fraud, false representation or concealment of material facts, after fulfilling the necessary conditions laid down by the law and rules in this respect. Similarly under rule 6 of the Rules the Council may, on a report from Azad Government of the State of Jammu and Kashmir or on its motion issue a notice to any person who is alleged to have obtained a State Subject Certificate by means of fraud, false representation or concealment of material facts to show cause why an order depriving him of the said Certificate should not be passed. Similarly under sub-section (6) of section 6 the Council shall pass such orders on the report of the committee or enquiry and if the Committee is not appointed on the application itself as it deems fit.
8. It was contended by Kh. Shahad Ahmed, the learned counsel for the appellant, that the writ petition was not maintainable as the State Subject Certificate issued by the District Magistrate was not challenged by moving an application before the same District Magistrate, or filing an appeal before the Government or moving the Council as such the remedies provided in Azad Jammu and Kashmir State Subject Act and Rules, which were adequate in nature were not availed of. Hence the writ petition was not maintainable.
9. No doubt that the State Subject Certificate issued by the concerned authority can be assailed before the same authority for its cancellation and the relevant Act .Has provided an appeal against the order not only before the Government but Council can also be moved, but the question is as to whether these remedies are adequate and efficacious in nature. It has been half more than once by this Court that the remedy provided by way of appeal under State Subject Act is not an adequate remedy. Similarly, the remedy before the District Magistrate as well as the Council is also neither adequate nor efficacious. It is in our common experience that these appeals are not disposed of for years together. In such situation the constitutional jurisdiction of the High Court can be attracted. In case of Attaullah Atta v. Ghulam Bashir Mughal and 5 others (1996 CLC 1551) the following observations were recorded by this Court: ' "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 dispatch. 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 dispute about domicile certificate and the appointment based on it are interwoven matters and writ petition was the only efficacious remedy."
' The learned counsel for the appellant relied upon an unreported case of this Court titled Abdul Waheed Khan v. The Chief Election Commissioner and others [Civil Appeal No,85 of 1997 decided on 17-4-1998], wherein this Court recorded the following observations at para No,11:- ' "The survey of case law referred above makes it abundantly clear and it has been the consistent view of this Court that where adequate alternate remedy is available the constitutional jurisdiction under section 44 of the Interim Constitution Act cannot be exercised."
10. In so-far-as the principle of law is concerned it has been correctly laid down but each case has to be seen in the light of its own peculiar facts. In the instant case we have already reached the conclusion and it is a matter of our common experience that appeals before the Council or the Government or for that matter proceedings before the District Magistrate consume a lot of time and the same are not disposed of for years together, thereby jeopardising the valuable rights of the parties. Hi this view of the matter in the instant case the remedy of appeal available to the respondents was not adequate or efficacious therefore the contention raised by the learned counsel for the appellant merits no consideration which is hereby repelled.
11. The other point that requires resolution is as to whether there was a sufficient material before the District Magistrate, Muzaffarabad who on the basis of his satisfaction issued the State Subject Certificate in favour of appellant but before we advert to the above mentioned point it would be relevant as to what do we mean by the term*" State Subject'. The term ' State Subject' is defined in the Constitution in the following words:- ' " State Subject' means a person for the time being residing in Azad Jammu and Kashmir of Pakistan who is a 'State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No,I-L/84 dated the 20th April, 1927, as amended from time to time."
' The relevant Notification dated 20th April, 1927, is reproduced below:- "NOTIFICATION ' Dated, the 20th April, 1927. No,I-L/84---The following definition of the term 'State Subject" has been sanctioned by His Highness the Maharaja Bajadur (vide Private Secretary's letter No,2354, dated the 31st January, 1927, to the Revenue Member of Council) and is hereby promulgated for general information: - ' The term 'State Subject' means and includes:- ' CLASS I.---All persons born and residing within the State before 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 permanently residing therein.
' CLASS IL ---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.
' CLASS III.---All persons, other than those belonging to Classes I and II permanently residing within the State, who have acquired under a raytnama any immovable property therein or who may hereafter acquire such property under an ijazatnama and may excute a rayatnama 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 am to the 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 State Subject.
NOTE I.-- NOTE II.--....................................................
NOTE III.--..................................................
NOTE IV.--..................................................
' It follows that on April 20, 1927, the Ruler of Jammu and Kashmir 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-I, Class-II, Class-III while the Class-IV was subsequently added to give status as State Subject to certain companies registered within the State along with some other amendments.
12. In Azad Jammu and Kahmir the 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. Sub-section (c) of section 2 of the State Subjects Act, 1980 provides as follows:- "(a) .......................................................................
(b).......................................................................
(c) 'State Subject Certificate' means a State Subject Certificate, issued under the rule relating to the issue of such certificates."
' Section 3 of the aforesaid Act provides as follows:- "3. Construction of references to 'Government'. Etc., inlaw relating to State Subjects.--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' of any other expression, howsoever worded, referring to Executive Government shall, so far as practicable, be construed refer to the Council."
' The relevant rule 4 of the Azad Jammu and Kashmir State Subjects Rules, 1980, is to the following effect:- "4. State Subject 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 of any of his parents or grandparents, as the case may be, issued by--- ' A village officer or an officer-in-charge of a police station; A Municipal or Town Committee or 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".
13. It was vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for respondents No,1 and 2, that the State Subject Certificate was issued by the District, Mugistrate, Muzaffarabad in favour of appellant on the basis of verification made by respondents No,5 and 6 namely Shehzad Qayyum and Muhammad Naeem, who were Social Welfare Officers, on 26-1-1996.
The aforesaid Social Welfare Officer made a statement before the S.D.M. Muzaffarabad on 5-3- 1996, and the verifications were wrongly taken into consideration by the District _Magistrate, at the time of granting State Subject Certificate in favour of appellant. Mr. Shehzad Qayyum and Muhammad Naeem were not refugees from District Barmula. Mr Shehzad Qayyum and Muhammad Naeem were born in Azad Jammu and Kashmir after 1947 and have never migrated from District Baramula therefore the verification issued by the persons who themselves were neither refugees nor residents of any part of the occupied Kashmir prior to 1947 could not be believed. Similarly the verification on the part of the aforesaid persons that the family of appellant migrated during the War of Liberation in 1947 from Hang Rajpura, District Baramula, could not be believed. The District Magistrate, Muzaffarabad had also wrongly taken into consideration a verification which was shown to have been made on 7-3-1996, by Shah Ghulam Qadir, the then Minister of Azad Jammu and Kashmir. Shah Ghulam Qadir categorically made a statement before the Returning Officer and the Chief Election Commissioner stating therein that he never issued any verification in favour of appellant. Furthermore Shah Ghulam Qadir wrote a letter to the District Magistrate Muzaffabad on 3-6-1996, wherein he categorically denied that he ever issued any such verification in favour of appellant. Shah Ghulam Qadir clearly wrote in his letter that verification purporting to have been issued on his behalf was a forged document. It is pertinent to mention here that Mr. Shehzad Qayyum and Muhammad Naeem and similarly Shah Ghulam Qadir subsequently resiled from their statement before the High Court. It may also be mentioned that both the above referred Social Welfare Officers moved an application accompanied by their affidavit before the High Court that they were not refugees and never migrated from occupied part of Jammu and Kashmir but were residents of Azad Jammu and Kashmir. It was also stated by them 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 by them that the verification was made on the persuasion of a driver namely Zahid Shaikh of their officer 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.
14. Another factor requiring consideration is that the petitioners-respondents averred in the writ petition that appellant was not a State Subject as his family members were the old citizens of United India. It was also averred by them 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 the appellant who was only entered as voter in the amended electoral roll of constituency No, LA-38, Valley-IV. The respondents in support of their claim also filed record of property existing in the name of Ch. Karim Baldish, the grandfather of appellant, since 1945-46 in Murree (Pakistan) and the other record of property for the same year was shown in the name of Mst. Fatima Jan, the grandmother of appellant, in Rawalpindi. The respondents brought on record copies of electoral rolls of Ward No,47 Municipal Corporation, Rawalpindi showing appellant and his other family members as voters entered therein. The electoral roll maintained for the refugees of Jammu and Kashmir Settled in Pakistan was also brought on record showing none of the family members of appellant entered as voter except appellant himself who was entered in the amended electoral roll of 1996.
15. The analysis of the aforesaid evidence leads to the conclusion that the S.D.M. Or the District Magistrate had no sufficient evidence before them for their 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 can safely be determined that S.D.M. Or the District Magistrate had no sufficient evidence satisfying them to exercise the jurisdiction in issuing the said certificate. The relevant authority also ignored the instructions issued in this regard on 18-3-1987, 26-3-1988, 6-3-1990 and 15-10-1990, which provide the guideline for 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 by the refugee gazetted officers having migrated from the occupied area along with other conditions necessarily to be satisfied. Thus it becomes clear that the S.D.M. And the District Magistrate did not apply their minds and failed to follow the mandatory provisions of law. Therefore it can safely be held that the District Magistrate did not exercise the jurisdiction in a lawful manner in issuing the aforesaid Certificate. It is also pertinent to note that the appellant's statement before the S.D.M. Is to the effect that his family left the State of Jammu and Kashmir in 1942 and that the father of appellant had migrated from Baramula in 1947 during the War of Liberation of 1947. The aforesaid statement of appellant on the one hand is not corroborated by any cogent evidence and on the other hand the aforesaid statement in no way shows that the appellant is a State Subject. According to the age given in affidavit and in the Identity Card (Annexure 'CD") the appellant was born in Pakistan after 1947 but his statement is to the effect that his father had migrated from Baramula in 1947 during the War of Liberation. Even on this score these statements could not have been taken into consideration.
16. The learned counsel for the appellant also half-heartedly argued that another remedy available to the respondents was in the shape of filing on election petition before the Election Tribunal. The aforesaid points was though raised but it was not pressed with full force. The High Court has observed that if a challenge is made to the qualification of a candidate then in view of amendment made in 1984, in the Ordinance, whereby subsections (a) and (b) of section 64 of the Ordinance were deleted, the same cannot be agitated before the Election Tribunal by way of election petition. Reliance in this regard was placed on the case of Sardar Sikandar Hayat Khan v.
Ghulam Mujtaba Bukhari and others (Civil Appeal No,7 and 8 of 1990 decided on 15-5-1990), the extract of which is reproduced below:- "The provision of law extracted above shows that the Election Tribunal 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 other remedy available to them.
' 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 alternate remedy is available, writ jurisdiction cannot be invoked."
17. The main stay of the case of Kh. Shahad Ahmed, the learned counsel for the appellant, rests on an admission claimed to have been made by the respondents before the Returning Officer. The learned counsel strenuously emphasised that the respondents before the Returning Officer made an admission that grandfather of Iqbal Razzaq Butt namely Karim Bakhsh had migrated to Pakistan 50 years prior to 1947 and if he migrated from the State of Jammu and Kashmir then irrespective of the correctness or otherwise or the assertion of respondent No,1 and 2 the fact remains that if grandfather of appellant had migrated to Pakistan from Jammu and Kashmir 50 years prior to 1947 then he was certainly the State Subject not only himself but his two coming generations would continue to be State Subject as provided in the Notification No,13-L/1989, published in the Government Gazette dated 24th Mar, 1989, which reads as under:- "NOTIFICATION ' No,13-L/1989. Whereas it is necessary to determine the status of Jammu and Kashmir State Subject in foreign territories and to inform the Government of Foreign States as to the position of their nationals in this State, it is, hereby commanded and notified for public information, as follows:- ' That all emigrants from the Jammu and Kashmir State to foreign territories shall be considered State Subjects and also the descendants of these emigrants born abroad for two generations:- ' Provided .......................... Thus according to the learned counsel it becomes abundantly clear that the above Notification lays down that not only the emigrant himself from the State to foreign country but even his descendants born abroad shall have the status of State Subject and after two generations they would lose that status.
18. On careful consideration of the arguments impressed upon and the nature of admission claimed to have been made by the respondents before the Returning Officer the argument is found to be of no substance at all. In the first instance no such admission was found in the whole of the record placed before us; secondly, though it was mentioned by the Returning Officer in his judgment that respondent's case was that grandfather of appellant migrated to Pakistan 50 years prior to 1947 but there is nothing in the so-called admission that Karim Bakhsh, the grand-father of the appellant, migrated from the State of Jammu and Kashmir to Pakistan. We are afraid we cannot stretch this so-called admission to the extent that the grandfather of the appellant migrated from the State of Jammu and Kashmir to Pakistan 50 years prior to 1947. Even the alleged admission was neither made basis for defence in the written statement filed by the appellant nor the same was confronted to the respondents. In our view it was imperative for the appellant to raise and prove that his grandfather was a State Subject and in that capacity he had migrated to Pakistan but neither such plea has been raised nor there is any material in support of the same. In this view of the matter the argument being devoid of legal force is of no substance.
19. Even if it be assumed for the sake of arguments that the grandfather of the appellant had migrated to Pakistan prior to 1947, keeping in view the composition of the Legislative Assembly as contained in the Ordinance called as Azad Jammu and Kashmir Legislative Assembly Ordinance 1970, the appellant could not have been eligible to contest the election from the seats reserved for refugees. Subsection (2) of section 2 of the Ordinance of 1970 is reproduced below:- ' "Six members to be elected from amongst themselves by the refugees from the occupied areas of districts of Muzaffarabad, Anantnag (Islamabad) and Baramula as these existed on 14th day of August, 1947, who are not residing in any of the provinces of the Punjab, Balochistan, Sindh and North West Frontier Province."
' The above provision makes it abundantly clear that these six seats are reserved for the refugees from occupied areas of District Muzaffarabad, Anantnag (Islamabad) and Baramula but the appellant failed to prove himself the refugee from the aforesaid areas.
20. For the foregoing reasons, we find no illegality in the judgment passed by the High Court, therefore, the appeal is dismissed with costs. It is declared that all actions commencing from the date of the order of Chief Election Commissioner and completed, thereafter, are null and void and of no legal effect. The Chief Election Commissioner and the Returning Officer, respondents herein, are directed to commence the election process regarding Constituency No,LA-38, Valley-IV afresh as early as possible.