' Briefly stated the facts of the case are that Mst. Nelofar, the wife of accused petitioner Murad Ali, alias Papu, had strained relation with her husband. Resultantly she was residing with her parents. It was on 17-6-1996 that a Jirga, consisting of the family members of the accused, went to the house of the parents of the lady wife and because of their deliberations the lady wife was sent by her parents to the accused-petitioner's house.
2. Strangely, the lady wife on the very next day i,e, 18-6-1996 died in the petitioner's house. The post- mortem report of the deceased wife revealed that the death was caused because of suffocation.
The matter was reported by her brother namely Shaukat Ali to the Police. The Police instead of registering an F.I.R. Entered the report in the daily diary, (Mad No,38) on the same day.
3. It appears that the matter was not only enquired into by the local Police but was also enquired into by Inspector Muhibullah Khan, D.P.E.O. However, the petitioner was adamant to get the case registered, therefore, the brother of the deceased had to approach the High Court for the registration of the FIR., by filing Writ Petition No,700 of 1996, (Shaukat Ali v. Superintendent of Police, Nowshera and others) which was decided by his Lordship Mr. Justice Abdul Rehman Khan and Mr. Justice Mian Shakirullah Jan. It was here, in the High Court, that the Police officials had filed their comments wherein they stated that an inquiry under section 174, Cr.P.C., has been initiated and that the stomach contents of the deceased had been sent to F.S.L. Lahore for chemical examination for opinion regarding the cause of the death. They further stated that the moment the requisite report is received by them they would proceed further in the matter in accordance with law. Accordingly the brother of the deceased did not press his writ petition further which was disposed of in the following terms:--- "3.11.1996. Abdur Rehman Khan, J.---The comments of respondent No,2 reveal that they have initiated inquiry under section 174, Cr.P.C,, and have sent stomach contents_ etc., for Chemical examination to P.S.L, Lahore for opinion regarding cause of death and the that report is available, they would proceed in the matter in accordance with law, The petitioner would, therefore, not for the time being= press this writ petition and would, take appropriate- steps in the light of the report of the.. Laboratory and the action on it by the Police, This 'writ, petition is accordingly disposed of, (Sd.) Abdur Rehman Khan, J. (Sd.) Mian Shakirullah Jan, J."
4. It is , shocking that it took the police about two and A ,half year; to 27-10-1998). Resultantly the accused-petitioner was arrested on 28-10-1998.
5. After having failed to get himself released on bail from the lower forums the petitioner has now approached this Court for the redress of his grievance contending that he is in falsely charged and has not committed the murder of his wife. According to him, his wife was suffering from 1,13.
(Tuberculpsis) and had expired because of suffocation.
6. On the other hand, the case of the prosecution is that she was done to death by the petitioner by placing a pillow on her mouth/nose with the result that she suffocated and resultantly died, The prosecution further alleged that there is nothing on the file to Suggest, even remotely, that the woman was in fact suffering from T.B. Or any other ailment and had remained under the treatment of some doctor including a lady doctor. The Prosecution has further alleged that it was for this reason that was never ever admitted to any Hospital because of her alleged illness. According to the learned counsel for State the lady wife was done to death intentionally.
7. Without dilating upon the merits of the case at this stage because it may prejudice the mind of the trial Judge, I am of the view that reasonable grounds do exist for believing that the, petitioner is connected with the commission of the offence charged with and that the judgment recorded by the Sessions Judge, Nowshera Jehangir Khan) is quite correct. Since the Session Judge has exercised this discretion judicial Only, therefore, there is no need for main interfere with the same.
8. Even otherwise, on a perusal of the available record it is not possible for me to come to the conclusion that the reasons given by the Sessions Judge for not granting bail to the accused- petitioner are either arbitrary or *Verde' and that the same are not convincing. Therefore, I do not see any Justification to interfere with the discretion exercised by him.
9. Reliance is placed on case titled ljaz All Khan v. The State reported as 1968 Supreme Court Monthly Review 1168, wherein it was held by the Hon'ble Judges of the Supreme Court as under: "The petitioner who is charged with the offence of murder has been refused bail by the Court below from which he now seeks leave to appeal. {{BLURE PAGE}} AbLi 4 ,4 Onraanliaing-llr-fagILA23Aritain sasitufulmiternralizialuhs klishSaarumaxLiffillattisulz ximilututraanstiiimilidisloatin ,t, fulfilled in this case. The petition is isintind." arAlt ' ikh.r0 WrItttitl C
10. For the above 'stated reascns I am convinced in my mind that this bail application is without any sUbstance and is accordingly dismissed. N.H.Q./383/P Bail refused.
1999 Y L.R 2499:u /11aq IShariat Court (AJ&K)j Before Bashateit Ahtnad Shaikh and Muhammad Yanuslurakhvi, JJ Sardar MUHAMMAD SAYYABViALID--- Petitioner `,ittnittO!' :; 311iitIV.40 Al/,t Uri versus fig )t 116,0.
Mohtrarna BENAZIR BHUTTO' and 39 Others-Respondents Civil' Petition for Leave .440 Appeal No,77 of 1999, decided on 31st July, -1999.
(On appeal from the judgment of the High C644 dtste4,M7A9R9 in Writ Petition No,64'\ 6f 1498)
(a) Azad Jamtniif and Kashmir Interim Constitution Act (VIII of 1974)- 44---Writ petition-MaintainabilityDeclaration-Cinder provisions of Azad Jammu and Kashmir Interim Conititution Act, 1974, could only be given to the effect that any act done or proceedings taken by a person performing functions in connection wilil'affairs of State or a legal Authority had been done or taken without lawful authority and was of no legal effect-Pirsons against whan writ was filed, being private person performing no function In connection with affairs of State, direction could not be issued against them as not lie against private persons. [Ii,1'25021 A i?,
(b) Azad JaM tenv'and Kashmir Interim Constitution Act (+111 of 19/4)-- --S. 44---Writ jurisclicti,on exercise ofScope-High Court could only pass an order which was authorised by law-While deciding a writ petition, High Court could issue a direction or declarmion if it was shown that law had been viotated.O. 2503/ B
(c) Mad Jammu and Kashmir Political Parties Act, 1985--- ----S 9-Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42- PetitiotrYtik leave to appeal-Political questions-Jurisdiction of Supreme "Court to decide-Questions raised by patiticiffir were essentially political in nature rilliFtbald not be deddid by Court of law, could be controlled tiy-04laW Made by Leglikintre and not by Courts-Courts were WO not authorised to make laws in that respect?. /P 2531 C Petitleti* inter bi" retitt-Rtul ortf.,11:741 nviDIste at baring: 2nd 1u1y, 1999. Wai -to vilorlip, BASHARAT AHMAD SHAIKH, 3.-r:Titc.Petitipner filed a writ petition in the Hi Ouri-Jii which, broadly splging, claiinea tote following rellers:#-
(1) It may be declared that right to form political parties in Azad Janunu and' Kashmir is enjoyed only by the' State Subjects, and that Mohtarama Benazir Bhutto, Chairperson Pakistan People's Party and Mohtarsm Hamid Nasir Chatta, President Pakistan Muslim League (J), not being State Subjects, can neither form a political party in Azad Jammu and Kashmir nor can extend the activities of the Pakistani political parties headed by them to Azad Jammu and Kashmir, and also that the aforementioned political parties are not legally entitled to take part in elections of Azad Jammu and Kashmir. {{BLURE PAGE}} (2)' It may be declared that respondents Nos.4 to 42, who are members of And Jammu and Kashmir Legislative Assembly as well as members of Azad Jammu and Kashmir Council belonging to Pakistan People's Party and Pakistan Muslim League (J) (including the Prime Minister and Ministers) were not entitled to participate in the elections of the Assembly and the Council as nominees of Pakistan People's Party and Pakistan Muslim League (J).
(3) Having been elected as nominees of the above said political parties, the said respondents cannot legally perform functions as such members, therefore, they may be called upon to show under what authority of law they are holding their respective offices.
(4) The said respondents may also be called upon to show under what Authority of law, being representatives of Pakistan People's. Party and Pakistan Muslim League (J), they are holding offices .As Prime Minister, Speaker, Deputy Speaker, Ministers. Advisors, Special Assistants and Parliamentary Secretaries.
2. The writ petition has been dismissed by the High Court sitting as Full Court which comprised the learned Chief Justice and fork learned Judges observed as follows:- "3. After hearing the petitioner, we have considered the arguments advanced at bar and have gone through the law regarding formation of a political party, election to the assembly and the council etc. The question as to whether a political party is a foreign party or a foreign aided party, can be determined by the Government in view of section 9 of the Political Parties Act, 1985 and in case the Government is satisfied that a political party is a foreign aided party and has been formed for operating in a pre-judicial manner in Azad Kashmir, the Government shall make such a declaration and that party shall stand dissolved where after the matter shall be referred by the Government to the Supreme Court whose decision shall be final. Relevant section 9 of the' Political Parties Act, 1985 is reproduced as follows:- '(8) Dissolution of political (1) Where the government is satisfied that a political party is, a foreign aided party or has been formed or is operating in a manner prejudicial to the Islamic Ideology or Ideology of State's accession to Pakistan, or morality, or maintenance, of public order or has contravened the provisions of section 4, it shall make such a declaration and publish the same in the official gazette and upon such publication, the political party concerned shall, subject to the provisions of subsection (2) stand dissolved, and it's all properties and funds shall be forfeited to the Government.
(2) Within fifteen days of the making of a declaration under subsection (1) of the Government shall refer the matter to the Supreme Court whose decision on such reference shall be final.'
Similarly the question as to whether a member of the assembly has become disqualified for being a member can be determined by the. Chief Election Commissioner on a reference made by the Speaker under subsection (2) of section 25 of the Constitution which is reproduced as follows:-- '25(2 ). If any question arises whether a member has, after his election become disqualified from being a member of the Assembly, the Speaker shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member and his seat shall become vacant.
(4) In our view of the provisions of section 8 of the Political Panics Act, the alternate and efficacious remedy if any, being available, the petition to the extent of declaration of the parties attributed to respondent Nos.1 and 2, as a foreign party or a foreign aided party, can be agitated before the Government only and in case the Government declares the party as a foreign aided party, the decision of the Supreme Court on a reference shall be final. As the specific law is in force for the remedy/declaration sought by the petitioner, the petition before the High Court is incompetent."
3. The above view has the support of all the learned Judges but there is a difference of opinion on another point which forms the other ground on which the writ petition has been dismissed. Four learned Judges have expressed the view that the membership of respondents Nos.4 to 42 can be challenged in the manner provided in subsection (2) of section 25 of the Azad Jammu and Kashmir Interim Constitution Act, reproduced above, and a writ petition is not maintainable in presence of this alternative remedy. In his dissenting opinion, one learned Judge has expressed the view that the provision reproduced above applies only where a member has incurred a disqualification after being elected as a member and has no application where a member was not qualified to be elected. He has also expressed the view that despite subsection (2), the superior Courts still can decide the question of disqualification if a writ of quo warranto is filed.
4. Sardar Muhammad Sayab Khalid, who is an Advocate of this Court, is not satisfied with the judgment of the High Court and seeks leave to appeal.
5. Relying on Fundamental Right No,7 he contended that no Pakistani political party can extend its functioning in Azad Jammu and Kashmir. He submitted that Pakistan People's Party and Pakistan Muslim League (J) have violated the law as stated, by extending their political parties in Azad Jammu and Kashmir. The petitioner referred us to resolutions passed by, the Security Council as well as the United Nations Commission for India and Pakistan (UNCIP) and contended that State Subjects have to decide whether they want to be with Pakistan or India through a fair and impartial plebiscite to be held under the auspices of United Nations. Therefore, he contended that extension of political parties of Pakistan to Azad Jammu and Kashmir militates against the right of the State Subjects to express their opinion at the time when they participate in the plebiscite. He explained that the Government of Pakistan or the people of Pakistan have no other role in Jammu and Kashmir except to perform those functions which are mentioned in the various resolutions mentioned above. Para.7 of the writ petition is as follows:- "The precise contention of the petitioner is that plebiscite is-to be held to ascertain the free-will of the people of Jammu and Kashmir but if people of Jammu and Kashmir become members of a Pakistani political party they will have no freewill of their own to decide the question of accession because they would< be bound by the party discipline of vote for accession to Pakistan."
6. No conclusive proof has been brought on record that Pakistan People's Party Azad Jammu and Kashmir and Pakistan Muslim League (J) are branches of Pakistan People's Party and Pakistan Muslim League (J) but at the admission stage we have to assume the contentions as correct unless they are disproved.
7, Ater examination of the writ petition We find that first part of the writ petition in which the petitioner seeks a declaration about the actions of Mohtarama Benazir Bhutto and Mohtaram Hamid Nasir Chatta is not maintainable because writ does not lie against a private person. Under section 44 of the Azad Jammu and Kashmir Interim Constitution Act a declaration can only be given 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." Mohtarama Benazir Bhutto and Mohtaram Harnid Nasir Chatta are private persons performing no function in connection with affairs of the State, therefore, a writ cannot issue against them.
8. However, the other part of the writ petition is in the nature of quo warranto under which the respondents Nos.4 to 42 can be called upon to show, if a prima facie case is made out, under what authority of law they are holding offices. The petitioner has himself appended record to show that they participated in the elections and obtained highest votes in their respective elections. It presupposes that they were found to be qualified to be so elected under the relevant laws such as the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, Electoral Rolls Ordinance as well as the Political Parties Act. According to the record of the case they were declared elected by the Chief Election Commissioner of Azad Jammu and Kashmir which means that they are holding their offices by authority of law. However, the petitioner contends that the said respondents were disqualified to participate in elections because they were nominees of the respective political panics mentioned above. Admittedly State Subjects have the right to form political panics. This right includes the right to join a political ,party of his own choice. Fundamental Right No,7 can be controlled by an Act as is provided in the Right itself, but there is no law in force in Azad Jammu and Kashmir that a political party in Azad Jammu and Kashmir cannot be affiliated with apolitical party in Pakistan or a political party, of Pakistan cannot set up a branch in Azad Jammu and Kashmir, The High Court cart only pass an order which is authorized by law. While deciding a writ petition the High Court can issue a direction or declaration if it is shown that a law has been violated. In the present case no such situation has been alleged in the writ petition.
9. The only restrictions imposed by law are those which are contained in the Azad Jammu and Kashmir Political Parties Act which regulates the formation and functioning of the political parties.
The High Court has rightly reached the conclusion that according to the Act only such political party which is a foreign aided party or is operating in a manner prejudicial to Islamic Ideology or Ideology of State's accession and others is not allowed to function in Azad Jammn and Kashmir.
These are the only restrictions which are legally in force in the liberated territory. The High Court has also rightly held that, the power of dissolution of a political party which has been formed or is operating in transgression of law has been vested in the Government. No such power has been granted to the Court.
10. The questions raised by the petitioner are essentially political in nature. It is alleged that members of Pakistan People's Party Azad Jammu and Kashmir and Pakistan Muslim League (3) will be forced to vote for Pakistan because they will be bound by the party discipline to do so. Whether this is right or wrong is a political question which cannot be decided by Courts of law, Such matters can be controlled by laws which are made by the Legislature, not by the Courts, The Courts are not authorized to make laws. They also cannot decide political questions.
10. For these reasons Ave find no force in this petition for leave to appeal and order its dismissal,