SARDAR SAID MUHAMMAD KHAN, C.J.--- The above-entitled appeals have been directed against the judgment of the High Court dated 16-12-1998, whereby the writ petitions filed by the respondents in Appeal No,30 of 1999 and the appellant in Appeal No,36 of 1999 were accepted and some of the provisions of the Ehtesab. Act, 1997, were held as violative of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter shall be called the Constitution).
2. The brief facts of the case are that five writ petitions were filed challenging the vires of the Ehtesab Act, 1997. The same were consolidated together and were disposed of through the impugned judgment. The High Court held that sections 2(j)(i)(ii), 19 and 24(1)(b) of the Ehtesab Act were violative of the Constitution. The Government and others have filed Appeal No,30 of 1999, entitled above, assailing the aforesaid findings of the High Court whereas Ch. Muhammad Azam Khan, one of the petitioners in the High Court, has preferred Appeal No,36 of 1999 contending that although the decision of the High Court so far as the same pertained to the aforesaid three sections was correct yet some other provisions of the said Act were also violative of the Constitution but the High Court failed to give any finding in that regard. He has further prayed that the appointments of the Chief Ehtesab Commissioner and the Director-General Ehtesab Cell be also declared violative, of the Constitution and that the proceedings initiated against him under the provisions of the said Act be held as without lawful authority. As both the above-entitled, appeals have arisen out of the same judgment of the High Court, we propose to dispose of the same by this single judgment.
3. Before dealing with the merits of the appeals, it is pertinent to point out that the Ehtesab Act, 1997 was amended first through an Ordinance which subsequently became an Act known as the Ehtesab (Amendment) Act, 1998, whereby section 2(j)(i)(ii) was amended, and the proceedings under the Ehtesab Act could be initiated against previously exempted office holders, except the President, Prime Minister, Ministers and Advisers. Before the amendment apart from the aforesaid office holders, many others including Speaker, Deputy Speaker, Mayors of Municipal Corporations, Chairmen and Vice-Chairmen of the District Councils etc., who held respective offices at the time of promulgation of the Ehtesab Act or thereafter were exempted from the prosecution under the Act and only those could be proceeded against who had held the offices before the enforcement of the said Act. -Thus, after the amendment, the grievance of the appellants in Appeal No,30 so far as section 2(j) is concerned, is confined only to the extent that the findings of the High Court that exemption from prosecution extended to the Prime Minister, Ministers and the Advisers who are holding offices was violative of the Constitution. It may also be stated here that the aforesaid amendment in the Ehtesab Act was effected before the impugned judgment of the High Court but despite that the respondents or any other petitioner in the High Court did not amend the writ petition filed by them so as to bring it in consonance with the changed circumstances which resulted from the amendment.
4. Dealing with the appeal filed by Azad Government of the State of Jammu and Kashmir and others (Civil Appeal No,30 of 1999), the learned Advocate-General has contended that the respondents were not adversely affected by any of the provisions of the Ehtesab Act and thus, they could not challenge the vires of the same. He has argued that the writ petitions filed by the respondents were liable to be dismissed on this sole ground. He has further submitted that the High Court was not legally justified in declaring section 2(j)(i)(ii) of the Act as violative of the Constitution because the Prime Minister, Ministers and Advisers have not been absolved of the prosecution under the said Act forever, rather the same were only deferred till they cease to hold the respective offices. According to the learned counsel for the appellants, the mere fact that the prosecution with regard to the aforesaid office holders has been postponed during the tenure of their offices does. Not mean that the aforesaid provisions were violative of the Constitution as being discriminatory. He has contended that it is necessary for the smooth functioning of the affairs of the State that the said office holders are protected from undue litigation during the period when they were occupying their respective offices. He has further submitted that the classification with regard to the different groups is permissible under law; the office holders who are presently holding the respective offices, constitute one group whereas those who had ceased to hold the offices constitute another group. Thus, according to the learned counsel for the appellant, the classification in the instant case is reasonable and did not offend against the principle that all the State Subjects are equal before law. He has also submitted that so far as the President is concerned, he is already protected from criminal prosecution under the Constitution when he is holding the office as such.
5. Dealing with section 19 of the Ehtesab Act, the learned Advocate-General has submitted that the High Court was not legally correct in holding that the word 'obtain' appearing in the section in context of tendering pardon to an accomplice conveys the sense that his evidence may be obtained through duress or coercion by the Chief Ehtesab Commissioner. The learned counsel has argued that the dictionary meanings, referred to by the High Court in the impugned judgment itself show that the word 'obtain' does not necessarily conveys the sense of compulsion or coercion; the word 'obtain' means to come in possession of a thing by any manner. He has submitted that the word 'obtain' has also been used in section 337 of Code of Criminal Procedure which deals with the evidence of accomplice but no such meanings have ever been assigned to it, despite the fact that the said provisions have been on the statute book since decades. The learned counsel has further submitted that even if it is assumed for the sake of argument that any such meanings can be attributed to the word 'obtain' occurring in section 19 of the Ehtesab Act, that did not invest the High Court with the powers to strike down the provision because such a provision can be struck down only if it is established that the same is against any Constitutional provision and not on the ground that the same is unreasonable or it has not been properly couched. He has further submitted that there is no authority for the proposition that the legislation can be struck down on any of such grounds.
6. Dealing with the findings of the High Court on the vires of section 24(1)(b) of the Ehtesab Act, the learned Advocate-General has argued that the same has been struck down on the ground that the contempt of the staff of the Chief Ehtesab Commissioner or his nominee has also been made punishable as contempt of the Chief Ehtesab Commissioner himself. He has argued that it has not been held by the High Court that the aforesaid provision, whereby the contempt of staff and his nominee has been made punishable as contempt of the Chief Ehtesab Commissioner, is violative of any Constitutional provision. Thus, the learned counsel has maintained that a provision, even if it is unreasonable, cannot be struck down until and unless the same is shown to be offending against the Constitution. The learned counsel has argued that under subsection (1) of section 24, the Chief Ehtesab Commissioner has been invested with the powers to punish for his contempt as are vested in the Supreme Court to punish for its contempt. The learned counsel has argued that the said provision nowhere says that the Chief Ehtesab Commissioner or his staff members are the 'Court' within the meanings of the Contempt of Court Act; all that the said section lays down is that the Chief Ehtesab Commissioner is empowered to punish for his contempt as the Supreme Court has the power to punish for its contempt. The learned counsel has submitted that section 24 does not imply that an act or omission which would constitute the contempt of the Supreme Court would also constitute the contempt of the Chief Ehtesab Commissioner or his contempt would be deemed to have been committed as a Court. The learned counsel has submitted that the contempt can be committed not only of a Court but of any lawful authority of a public servant as is evident from Chapter X of the Azad Penal Code. Thus, the mere fact that the contempt of the staff of the Chief Ehtesab Commissioner has been made punishable as a contempt.Of the Supreme Court does not offend against the Constitution. The learned counsel has submitted following authorities in support of his contentions:- In case reported as District Board, Karnal v. M.R. Sharma (AIR 1959 Punjab 318), it has been held that only a person who is directly affected by a law can challenge the validity of that law and a person whose own right or interest has not been violated or threatened cannot impugn the law on the ground that the right of somebody has been infringed; the same principle must prevail irrespective of the form of the proceedings in which the question of constitutionality is raised. In case reported as V.N. Narayanan Nair v. State of Kerala (AIR 1971 Kerala 98), it has been held that the constitutionality of a statute can be challenged only by those who are personally and directly affected by a certain provision; it was observed that a person aggrieved by one provision cannot challenge another provision by which he is not aggrieved even if two provisions are inseverable. It was also observed that transgression of a statute in field of legislative competence or other Constitutional prohibitions can be saved on the principle of severability or by construing apparently wide language in a restricted sense by keeping it within bounds.
In case reported as Haji Muhammad Sadiq v. Khairati (1984 CLC 2239), it has been observed that the High Court cannot give relief suo motu in exercise of writ jurisdiction which was not claimed in the writ petition. In case reported as Zia Ullah Khan v. Government of Punjab (PLD 1989 Lahore 554), while dealing with the constitutionality of Special Courts for Speedy Trials Act, 1987, the principle of equality before law envisaged in Article 25 of the Constitution of Pakistan, 1973, it was observed that the guarantee of equal protection of law did not mean that all laws must be general in character and universal in application and that. The State had no power to distinguish and classify persons or things for the purpose of legislation. It was observed that the classification must not offend against the constitutional guarantee and must be based on some intelligible differentia bearing a reasonable and just relation to the object sought to be achieved by the legislation. The Court further held that whether the classification is reasonable or not is to be determined by the Courts taking into consideration the matters of common knowledge, and the history of the times etc. Consequently, the Court held that some of the provisions of impugned legislation were not hit by Article 25 of the Constitution as they were based on reasonable classification.
7. In reply, Mr. Abdur Rashid Abbasi, Advocate, the learned counsel for respondent No,2, has contended that the question as to whether the respondent was aggrieved or not, was not raised in the High Court; it is being agitated for the first time during the course of arguments in this Court which is not permissible. He has argued that in view of the contents of the writ petition filed by respondent No,2, it cannot be said that he was not an aggrieved person. The fact that he was proceeded against under the provisions of the Ehtesab Act is not denied even by the opposite- party. The question as to how he would be affected by a particular provision of the Ehtesab Act could only be gone into if it would have been raised by the appellants in the High Court. The learned counsel has argued that there is no dispute that while enacting a law, a reasonable classification between various groups is permissible but the question in the instant case is as to whether the exemption from prosecution stipulated in case of Prime Minister, Ministers and Advisers during the period when they were holding the office is reasonable. He has submitted that the object of promulgation of the Ehtesab Act is to take immediate action against the corrupt practices etc., as is evident from the preamble of the Act. Thus, he has maintained that the argument advanced by the learned counsel for the appellants that the criminal proceedings against the aforesaid office holders have been postponed for the period during which they are holding the offices is itself violative of the provisions of the Ehtesab Act. The learned counsel has submitted that whether a classification is reasonable or not is to be seen by the Courts. He has submitted that the mere fact that the aforesaid office holders were occupying the offices at present should not make them immune from prosecution when according to Fundamental Right No,15 all State Subjects are equal before law and are entitled to equal protection. The learned counsel has argued that had the Constitution intended any such protection in case of Prime Minister, Ministers or Advisers, it would have stated so in the Constitution as has been done in case of the President. Thus, the learned counsel has maintained that the very fact that no such protection has been given to the aforesaid office holders by the Constitution, the provisions contained in section 2(j)(i)(ii) of the Ehtesab Act are discriminatory and violative of the aforesaid Constitutional provisions. He has further submitted that the provisions of the Azad Jammu and Kashmir Interim Constitution Act are identical to the corresponding provisions contained in the Constitution of Pakistan (1973) but no such exemption has been given to the Prime Minister, Ministers or Advisers, in the Ehtesab Act promulgated in Pakistan. He has further argued that the fact that some of the categories were brought out of exemption by amending the aforesaid provisions, itself shows that the law givers realised the fact that the aforesaid provisions were violative of the Constitution but despite that amendment, the exemption from prosecution under Ehtesab Act was retained in case of the Prime Minister, Ministers and Advisers. This, according to the learned counsel, would defeat the very object of the Ehtesab Act. The learned counsel has further maintained that the contention of the learned counsel for the appellants that such an exemption was necessary for smo oth functioning of the State is merely a conjecture which amounts to defeat the very purpose of the legislation in question.
8. While dealing with the findings of the High Court regarding section 19 of the Ehtesab Act, the learned counsel has contended that the said provision of tendering pardon to accomplice runs counter to section 31(5) of the Constitution as being against Holy Qur'an and Sunnah. He has argued that ever if it is assumed that the word 'obtain' occurring in section 19 of the Ehtesab Act did not justify to strike down section 19 by the High Court that would not help the appellants, because the provisions of section 19 as a whole are not sustainable in view of the aforesaid Constitutional provisions. The learned counsel was reminded that he could only protect the findings given by the High Court regarding section 19 and is not entitled to assail section 19 as a whole because the respondents-petitioners, including Ch. Muhammad Azam, respondent, did not challenge the said findings by filing an appeal. The learned counsel met the said observation by arguing that the respondent can support the findings given by the High Court on the grounds which were decided against him without filing any appeal or cross-objections.
9. While dealing with the question of vires of section 24(1)(b) of the Ehtesab Act, the learned counsel, instead of defending the findings of the High Court regarding section 24(1)(b), has argued that the section as a whole was violative of the Constitution because the Chief Ehtesab Commissioner was not a 'Court' and, thus, he could not be empowered to punish for his contempt.
The learned counsel has argued that the law of contempt of Court and the Constitutional provisions dealing with the contempt punishable by the Supreme Court stipulate that only a 'Court' can be empowered to punish for its contempt and not any other. Authority. The learned counsel has argued that the Chief Ehtesab Commissioner, being not a Court, could not be invested with the powers to punish for his contempt. The learned counsel maintained that he can assail the vires of section 24 as a whole on other grounds, irrespective of the fact whether any appeal has been filed in that regard or not. The learned counsel has cited the following authorities in support of his contentions:-- In case reported as Deputy Commissioner, Lyallpur v. Mian Muhammad Saeed Sehgal, Chairman, Daily 'Afaq' Lyallpur (PLD 1958 Lahore 153), while dealing with the scope of word 'Court' in context of section 2(1) of the Contempt of Courts Act, 1926, it has been observed that a Deputy Rehabilitation Commissioner appointed under the Pakistan Rehabilitation Act did not constitute a 'Court' within the meaning of aforesaid provisions of Contempt of Courts Act; it was observed that the word 'Court' used in section 14 of the Pakistan Rehabilitation Act was used only in its limited sense. In case reported as Mst. Khadija Bibi v. Abdul Wahid (1980 CLC 2145), it has been held that the 'word 'Court' implies imparting of justice after receiving evidence of the parties. The question before the Court was as to whether the Rent Controller's Court was under the supervision and control of the High Court within the meaning of Article 203 of the Constitution of Pakistan, 1973. It was held that the word 'Court' implies imparting justice after receiving evidence etc. And give binding pronouncement based on the evidence. It was observed that the scope of word 'Court' has wide elasticity which cannot be narrowed down. However, it was held that the High Court had the power of control and superintendence over the subordinate Courts and being the Appellate Court of Rent Controller, had the power of control over the Rent Controller under Article 203 of the Constitution, despite the fact that it was not subordinate to the High Court as are the other Courts belonging to in the hierarchy. In case reported as Anil Das v. Mustaque Ahmed (PLD 1967 Dacca 521), while dealing with the connotation of words 'persona designata', it was held that a 'persona designata' may be entrusted with the judicial or adminsitative functions and, thus, it may or may not be a 'Court' within the meaning of section 3 of the East Pakistan Disturbed Persons (Rehabilitation) Ordinance, 1964. In case reported as Brajnandan Sinha v. Jyoti Narain (PLD 1956 SC (Ind.) 65), it has been observed that the word 'Court' has not been defined in the Contempt of Courts Act, 1926. The Commissioner appointed under the Public Servants Inquiries Act, 1850, was not a 'Court' because the 'Courts' for the purpose of section 3 of the Contempt of Courts Act would be those which were subordinate to the High Court in the hierarchy established for the purpose of the administration of justice. In case reported as Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341), while dealing with the scope of Article 25 of the Constitution of Pakistan, 1973, as to whether a particular statute offends against the equality of law, following principles were laid down:-- "(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based--
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object, sought to be achieved by such classification." Thus, while dealing with the constitutionality of the provisions known as Criminal Law (Special Provisions) Ordinance (II of 1998), it was held that the impugned legislation was in conflict with Articles 9, 25, 175 and 203 of the Constitution of Pakistan, 1973 and, thus; a direction was issued to the respondents to take necessary steps to bring the said Ordinance in conformity with the Constitution. In case reported as Shrin Munir v. Government of Punjab (PLD 1990 SC 295), while dealing with the connotation of Articles 22 and 25 of the Constitution of Pakistan, 1973, it was held that there is no conflict between the provisions of the aforesaid two Articles of the Constitution. It was observed that when an educational institution is thrown open for coeducation, then a further restriction of numbers on the ground of sex is permissible only as a protective measure of women and children but in no case so as to protect comparatively less meritorious boys to the prejudice and exclusion of women as this would amount to gross violation of Constitutional mandate. It was held that to fix a maximum number of female candidates in medical college was violative of the aforesaid two Articles. Therefore, the claim of the girl students that they were discriminated against on the basis of sex, despite the fact that they had better merit as against the male candidates, was upheld.
However, it was held that as the boys who were admitted had completed two years' course, they would not be dislocated especially so when they were not impleaded as party to the writ petition.
In case reported as Inamur Rehman v. Federation of Pakistan (1992 SCMR 563), it was held that sections 2, 6 and 6-A of the Rdeign Exchange (Prevention of Payments) Act, 1972, were violative of Article 26 of the Constitution of Pakistan, 1973 because the same were arbitrary, discriminatory and denied the equal protection of law to all the citizens. It was further observed that only a classification which is reasonable would sustain and not the classification which is unreasonable.
10. We have given due consideration to the arguments raised at the Bar. So far as the contention of the learned counsel for the appellants that the respondents were not legally competent to challenge the vires of the Ehtesab Act because they were not aggrieved by the promulgation of said Act is concerned, it may be stated that no such point was raised in the High Court or even in this Court before addressing arguments. A legal point not raised in the concise statement is not allowed by this Court to be raised for the first time during the course of arguments. In the instant case, whether the A respondents were aggrieved persons or not is mixed question of law and facts.
Thus, the appellants should have raised the objection in the High Court so as to give an opportunity to the opposite-party to show as to how they were not aggrieved. Therefore, the contention with regard to the competency of the writ petition on the question of being an aggrieved person cannot be allowed at this stage. Hence, the argument that respondents being not aggrieved persons could not file the writ petitions is hereby repelled.
11. So far as section 2(j)(i)(ii) is concerned, after the amendment in the said section, the dispute relates only so far as the Prime Minister, Ministers and Advisers are concerned. The learned counsel for respondent No,2 did not controvert seriously the exemption so far as the President is concerned.
So far as the contention of the learned counsel for the appellants that the exemption from prosecution extended to the Prime Ministers and Advisers during the tenure of their offices is a reasonable classification which is necessary for the smooth functioning of, the affairs of the State is concerned, we are of the opinion that the object of the impugned legislation is to firmly deal with certain categories of the offences, particularly that of corruption by certain office holders.
Therefore, to make a distinction between the office holders who have ceased to hold the offices and those who are holding the offices on the ground that smooth functioning of the affairs of the State would be adversely affected is not tenable. Similarly, the contention of the learned counsel for the appellants that the prosecution of the said office holders has been only postponed and, thus, the classification envisaged in the relevant provisions of the impugned legislation is reasonable and does not offend against the Constitution is without any force., because in our view the alleged postponement itself runs counter to the very object of the Ehtesab Act according to which one of the purposes of the .Act was to eradicate the corruption and deal speedily with related offences. Thus, we are of the opinion that the distinction created between the present office holders and those ceased to hold offices is an artificial one and the High Court has rightly held the said provisions as being violative of the Constitution.
12. Coming to' the vires of section 19 of the Ehtesab Act, it may be observed that according to the Black's Law Dictionary the word 'obtain' means to come into possession of a thing by any manner.
This shows that the word 'obtain' does not necessarily imply that the evidence or for that matter any other thing would be obtained through coercion or duress. When more than one meanings can be attributed to a word in a statute, the meanings which are in consonance with the scheme of the statute are to be assigned to it and not the meanings which run counter to it. The word 'obtain' has also been used in the relevant provision of the Code of Criminal Procedure in relation to an accomplice but no such meanings have been ever attributed to it as has been done by the High Court in the instant case. Even if it is assumed for the sake of argument that any such meaning can be assigned to the word 'obtain', in the instant case, the provisions cannot be struck down merely because the same are unreasonable. There is no authority for the proposition that a statutory provision can be assailed as being unreasonable or the same is not properly couched.
13. So far as the argument of the learned counsel for respondent No,2 that section 19 of the Ehtesab Act was violative of section 31(5) of the Constitution is concerned, the High Court, relying on a number of cases of this Court, has held that a law cannot be struck down as being against the Holy Qur'an and Sunnah because the Constitution does not say so. Besides, no appeal has been preferred against the aforesaid finding of the High Court. In the cross appeal filed by Ch. Muhammad Azam, the said finding of the High Court has not been challenged. Rather it has been specifically mentioned in the memo. Of appeal that the findings of the High Court regarding the vires of sections 19 and 24 are correct; it has nowhere been mentioned that the High Court was not correct in holding that a law which is violative of section 31(5) of the Constitution cannot be struck down. The matter would be further elucidated when we deal with cross appeal filed by Ch. Muhammad Azam, appellant. Thus, it may be observed that the respondent in the present appeal can only defend the findings of the High Court which have been given in terms that in view of word 'obtain' used in the aforesaid provision, the application of compulsion by the Chief Ehtesab Commissioner cannot be ruled out and, thus, the same was violative of the Constitution. As stated earlier no such inference can be drawn from the said word. Thus, the finding of the High Court that section 19 is violative of the Constitution is not sustainable and is hereby set aside.
14. Coming to section 24(1)(b) of the Ehtesab Act, it may be observed that the High Court has struck down the said provision on the ground that contempt of staff members and nominees of the Chief Ehtesab Commissioner is also punishable as contempt of the Chief Ehtesab Commissioner himself.
The High Court did not give finding that the Chief Ehtesab Commissioner, not being a Court within the meanings of Contempt of Courts Act, cannot be invested with the powers to punish for his contempt. The argument advanced by the learned counsel for respondent No,2 that section 24 as a whole is violative of the Constitution because the Chief Ehtesab Commissioner or his staff members are not 'Courts' within the meaning of the Contempt of Courts Act and, thus, no such powers can be given to the Chief Ehtesab Commissioner is beyond the scope of present appeal because no appeal has been filed against the said findings. The authorities relied upon by the learned counsel for the respondent deal with the cases in which the proceedings were initiated under the Contempt of Courts Act, 1926, and the question arose as to whether a particular authority was a Court within the meaning of the said Act or not. Consequently, in some of the cases, it was held that the concerned authority was not a 'Court' within the meaning of the Contempt of Courts Act. In the instant case, the question whether the Chief Ehtesab Commissioner or his staff members are the 'Courts' or not does not arise at all because it has nowhere been said in section 24 that the Chief Ehtesab Commissioner or his staff members are 'Courts'. All that the aforesaid provision stipulates is that the Chief Ehtesab Commissioner is empowered to punish for his contempt and the contempt of his staff members as the Supreme Court is empowered to punish for its contempt.
Obviously, the aforesaid provision does not say that the Chief Ehtesab Commissioner or his staff members are 'Courts' within the meanings of the Contempt of Courts Act. Thus, the powers given to Chief Ehtesab Commissioner to punish for his contempt as the Supreme Court, cannot be regarded as being violative of the Constitution on the ground that the Chief Ehtesab Commissioner has been given powers to punish for his contempt as are vested in the Supreme Court. It hardly needs any argument that even the contempt of the public authorities other than the Courts is punishable despite the fact that they are not Courts. It may be observed that even Legislative Assemblies have been empowered to punish for their contempt despite the fact that they are not Courts. A reference may also be made to Chapter X of the Azad Penal Code which makes the contempt of certain public servants a punishable offence. Thus, the findings of the High Court that section 24(1)(b) of the Ehtesab Act which empowers the Chief Ehtesab Commissioner to punish for his contempt or the contempt of this staff members cannot be regarded as violative of the Constitution; even the High Court has not held that the Chief Ehtesab Commissioner cannot be empowered to punish for his contempt; it merely observed that the contempt of the staff members of the Chief Ehtesab Commissioner should not be deemed as a contempt of the Chief Ehtesab Commissioner. As has already been observed that a provision of a statute cannot be struck down as being improper; it can be struck down only if it is violative of the Constitution. There is no provision in the Constitution empowering the High Court to strike down a law because the same is improper in its estimation. Therefore, the findings of the High Court regarding section 24(1)(b) are not sustainable and are hereby set aside.
15. Coming to appeal filed by Ch. Muhammad Azam (Civil Appeal No,36 of 1999), it may be stated that the perusal of the memorandum of writ petition shows that general allegations have been made in the writ petition that the provisions of the Ehtesab Act are violative of the Constitution. It has not been stated as to which of the provisions of the said Act are violative of the Constitution and how. A perusal of the memorandum of appeal filed in this Court would show that it has nowhere been averred that the findings of the High Court so far as the same pertain to sections 20)
(i)00; 19 and 24(1)(b) are incorrect or that sections 19 and 24 should have been struck down as a whole; rather in the memorandum of appeal, it has been categorically stated that the findings of the High Court regarding the vires of sections 19 and 24(1)(b) are correct meaning thereby that said sections as a whole are not violative of wet* 31(5) of the Constitution, According to the memorandum of appeal, the grievance of the appellant is that all laws should be brought in consonance with Holy Qur'an and Sunnah. It would be expedient here to reproduce the relevant paragraphs of memorandum of appeal which deal with the abovementioned proposition. Sub- paragraph (vi) and prayer clause are as under:-- Sub-para. (vi): That it is envisaged under Article 31(5) of the Azad Jammu and Kashmir Constitution Act that all the laws in Azad Jammu and Kashmir are to be brought in conformity with the Holy Qur'an and Sunnah, and no law shall be repugnant to the teachings of Islam as set up in the Holy, Qur'an and Sunnah. This provision which creates a distinction or discrimination in the application of the Ehtesab Act being derogatory to this provision, is also ultra vires;"
Prayer clause: "It is, therefore, most respectfully prayed that leave may kindly be granted and after granting the leave, the same may be treated as an appeal and the impugned judgment of the Azad Jammu and Kashmir High Court dated 16-12-1998 announced on 22-12-1998 may please be partly set aside and the grounds agitated in this petition, may kindly be considered and to give final adjudication on the points enumerated above. It is also prayed that the impugned judgment of the High Court with respect to last para. In which the provisions of Ehtesab Act, section 2(j)(i)(ii) and section 19
(24) have been declared to be ultra vires; that judgment is valid up to this extent and alternatively, direction to the Government may kindly be given to frame the law or to make the law in consonance with the Islam as well as the Constitution of AJK is lacking in the impugned judgment which may kindly be directed to be given. Any other appropriate relief which this Hon'ble Court deems fit, may also be granted in favour of the petitioner against the respondents, with costs." It is evident from the above mentioned paragraphs that the grievance of the appellant is not that the findings of the High Court pertaining to the vires of sections 19 and 24(1)(b) are incorrect, rather it has been clearly mentioned that those findings are correct. It is for this reason that while dealing with appeal filed by the Azad Government it has been observed that the findings of the High Court regarding the vires of sections 19 and 24(1)(b) have not been challenged as being against Holy Qur'an and Sunnah and, thus, the learned counsel for respondent No,2, in that appeal, was not legally justified to argue, without filing an appeal, that the findings of the High Court regarding the vires of said provisions are wrong.
16. It may be stated that Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for Ch. Muhammad Azam, appellant, has argued that the Ehtesab Act makes some of the offences punishable which were not offences before the promulgation of the said Act. Thus, according to the learned counsel, some provisions of the Act offend against the Constitution. However, when the learned counsel was asked as to which of the offences enumerated in the Schedule to the Act were not offences before its promulgation could not point out any such offence. Similarly, the argument that the appointments of the Chief Ehtesab Commissioner and Director-General Ehtesab are without lawful authority and against the Constitution has not been substantiated as to how the same were violative of the Constitution. No other point was pressed by the learned counsel for Ch. Muhammad Azam, appellant. Hence finding no force in this appeal (Civil Appeal No,36 of 1999), it is hereby dismissed. In the light of what has been stated above, Civil Appeal No,30 of 1999, entitled above, is partly accepted; the findings of the High Court to the effect that section 2(j)(i)(ii) is violative of the Constitution are maintained and the findings regarding vires of sections 19 and 24(1)(b) are hereby set aside. The cross appeal filed by Ch. Muhammad Azam is dismissed. In the circumstances of the case, we make no order as to the costs.