' SARDAR SAID MUHAMMAD KHAN, C.J.---The above entitled review petitions have been directed against the judgment of this Court, dated 28-4-2000, whereby three appeals entitled Messrs Jabeer Hotel v. Kashmir Council, Islamabad, and others (Civil Appeal No,89 of 1999), Kashmir Council and others v. Messrs Jabeer Hotel, Mirpur (Civil Appeal No,90 of 1999) and Assistant Collector Grade-I, Jhelum, Pakistan and others v. Messrs Hafiz Textile Mills Limited Mirpur (Civil Appeal No,91 of 1999) were disposed of by a consolidated judgment and it was held that the Employees' Old-age Benefits Act, 1976 (hereinafter shall be called Act XIV of 1976) was validly adapted in Azad Jammu and Kashmir vide the Employees' Old-age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act, 1980 (hereinafter shall be called as Act X of 1980) which was also subsequently validated by the Azad Jammu and Kashmir Council Validation of Laws Act, 1995 (hereinafter shall be called Act III of 1995). However, it was opined in the judgment under review that the jurisdiction of Employees' Old-age Benefits Institution (hereinafter shall be called as the EOP Institution) constituted in Pakistan by the Federal Government cannot be extended to the State of Azad Jammu and Kashmir in view of subsection (13) of section 21 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, because the same is not subordinate to the Azad Jammu and Kashmir Cotmcil.
2. It has been contended by Mr. Zafar Hussain Mirza, Advocate, the learned counsel for the petitioners, that the paragraphs 14, 15 and 16 of the judgment under review, it has been clearly held by this Court that the provisions of the Act known as Employees' Old-age Benefits Act, 1976 (Act XIV of 1976) were rightly adapted in Azad Jammu and Kashmir vide Act X of 1980, except that the jurisdiction of EOB Institution established in Pakistan could not be extended to the State of Azad Jammu and Kashmir. The learned counsel has argued that despite the aforesaid findings, after dealing with the question as to why the functions of EOP Institution working in Pakistan cannot be extended to the State of Azad Jammu and Kashmir, Act X of 1980 has been declared as unconstitutional as a whole which could not be done. The learned counsel has contended that the finding in paragraph 26 that Act X of 1980 was void in toto runs counter to the findings recorded in paragraphs 13 to 16 of the judgment, wherein it has been held that the Act X of 1980 was a valid legislation, except the extension of jurisdiction of EOP Institution established by the Federal Government to the State. The learned counsel has submitted that the finding in paragraph 26 should have been couched to imply that the said Act was void so far as it extended the jurisdiction of EOP Institution set up in Pakistan to the State and not the Act X of 1980 in toto. The learned counsel for the petitioners has argued that if a provision of a statute is found to be violative of the Constitution, only that provision is to be struck down and not whole of the statute, until and unless the offending provision is so closely knitted with the other provisions of the statue that the same cannot stand separately or the intention of law-giver was that such provision should not remain operative independently. The learned counsel has submitted following authorities in support of his contentions:-- ' In a case reported as The State of Bihar v. Sir Kameshwar Singh (AIR 1952 SC 252), it has been observed that for deciding as to whether a statute is 'ultra vires' as whole or only partly, the real question to decide is whether what remains is so inextricably bound up with the part declared invalid that the same cannot survive independently, or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted the part which survives without enacting the part that is 'ultra vires'.
' In a case reported as R.M.D. Chamabaugwalla v. Union of India (AIR 1957 SC 628), it has been held that while deciding the question as to whether a statute would fall as a whole or in parts, the deciding factor is as to whether what is valid can be separated from what is invalid; the question is to be decided by the Court on the consideration of the provisions of the relevant statute.
' In a case reported as Messrs Devi Das Gopal Krishman v. State of Punjab (AIR 1967 SC 1895), section 5 of the Punjab General Sales Tax Act, 1948, was held void while the provisions contained in section 4 of the said Act were held valid as being separable from section 5.
' In a case reported as The State of Bombay v. F.N. Balsara (AIR 1951 SC 318), certain provisions of Bombay Prohibition Act (25 of 1949) were held invalid while others were held valid and kept alive on the statute book. It was held that certain provisions of the Act being invalid did not necessarily mean that the Act as a whole is invalid.
3. In reply, Kh. Ali Muhammad, Advocate, the learned counsel for the respondents, has controverted the arguments advanced on behalf of the learned counsel for the petitioners. He has argued that the question as to whether the statute would be declared valid as a whole or in parts, one of the tests is that the intention of the law-giver is to be ascertained; if the Court comes to the conclusion that the Legislature would not have enacted the valid part of the statute without enacting the offending one, the whole statute is to be struck down. According to the learned counsel, subsection 1 of section 1 of Act X of 1980 shows that primarily object of the Azad Jammu and Kashmir Council (hereinafter shall be called the Council) was to extend the functions of EOP Institution constituted by the Federal Government of Pakistan to the State of Azad Jammu and Kashmir and not to adapt Act XIV of 1976 in Azad Kashmir. Thus, he has areued that the Act X of 1980 has rightly been declared void as a whole in the judgment under review. He has further submitted that in the present case, the matter of extension of functions of EOP Institution is so firmly woven with the provisions contained in section 2 of the Act X of 1980 that the Act must fall as a whole.
4. We have given due consideration to the arguments advanced at the Bar. In the judgment under review, it has been clearly held in paragraph 16 of the judgment that Act X of 1980 has rightly been adapted by the Council despite the fact that the word 'extension' instead of 'adaptation' has been employed in the aforesaid Act. Thus, it cannot be said that the intention of the Azad Jammu and Kashmir Council was to extend the functions of EOP Institution to the State of Azad Jammu and Kashmir and not to adapt the provisions of the Act XIV of 1976 in the State. The first part of section 2 of Act X of 1980, whereby the provisions of Act XIV of 1976 and the rules etc. Framed thereunder were adapted in Azad Kashmir is separable from the second part whereby the functions of EOP Institution, established by the Federal Government, have been extended to the State. Therefore, we are of the opinion that it cannot be said that the first part of section 2 is so inseparably woven with the second part, that the Act must fall as a whole. It is well settled principle of law that if a provision of a statute which offends against the supreme law of the land is separable from the provisions which are legal, only the offending provisions would be struck down and not the statute as a whole.
A reference may be made to the following authorities:---- ' While dealing with the proposition, it has been observed in Note 144 of the Book known as 'The Construction of Statutes' by Earl T. Crawford, as under:---- "144. In General.---Simply because a statute happens to be unconstitutional or invalid in part, does not necessarily mean that the part which is not invalid must also fail, not even though the statute be penal. It is only where the valid parts are so clearly dependent upon and so inseparably connected with the invalid parts that they cannot be separated without defeating the object of the statute, that they too must fall with those parts which are invalid. It is also well to remember that separability is not dependent upon whether the various provisions are contained in the same section, for the division of a statue into sections is purely artificial. In determining separability, the test is whether the legislature has manifested an intention to deal with a part of the subject matter covered, irrespective of the rest of the subject matter; if such an intention is manifest, the subject matter is separable. If the valid parts are complete in themselves and independent of the ,invalid parts and capable of being executed according to the intention of the legislature, they must be sustained by the Court, notwithstanding partial invalidity."
' A In a case reported as Azad Government of the State of Jammu & Kashmir v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139), it has been held that if the provisions of an Act declared as invalid are inextricably bound up with the one which is valid and cannot be severed, the same would be invalid as a whole but where such provisions are independent and separable, the statute would not be invalid as a whole; it was further observed that the real intention of the Legislature is to be ascertained as to whether it intended that a statute must stand or fall together. If the Court comes to the conclusion that the Legislature would not have enacted the part which is invalid without enacting the part that is ultra vires, the whole Act would fall; otherwise the ultra vires provisions would be struck down only to the extent of repugnancy to the Constitutional provisions.
In a case reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation, Muzaffarbad PLD 1978 SC (AJ&K) 42, it has been held that as the provisions of the Act known as the Timber Trade (Nationalisation) Act, 1976, were inextricably bound and interwoven, the Act must fall as whole and not to the extent of provisions found inconsistent with the Constitutional provisions.
' In a case reported as The Province of East Pakistan v. Md. Mehdi Ali Khan PLD 1959 SC (Pak.) 387), it has been held that the term 'void' is construed to mean as 'not in operation' so long as the supreme law holds the filed. It has been held that there is fundamental difference between a law that is made by an incompetent Legislature and a law made by a competent Legislature but which is in conflict with a fundamental right; the former is void on general principles, but the latter would be void only to the extent of the repugnancy. The former remains void unless re-enacted by a competent Legislature, the latter requires no re-enactment and is only void so far as it is inconsistent with the provisions of the Constitution.
' In a case reported as Pir Sabir Shah v. Shad Muhammad Khan. Member Provincial Assembly, N.- VV.F.P. (PLD 1995 SC 66), it has been observed in paragraph 46 of the judgment as under:--- "46. As we hold that subsections (2) and (3) of section 8-B of the Act of 1962 are void and consequently the impugned order of the Election Commission is also void and of no legal effect, the question of the Constitutional validity of subsection (1) of section 8-B of the Act of 1962 has become a hypothetical question and it is unnecessary to decide it. Subsection (1) of section 8-B of the Act of 1962 is readily severable from subsections (2) and (3) therefore, it is not a case where 'what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive....' (See (1947) A.C. 503, 518)."
' In a case reported as Das Khanna v. Emperor (AIR 1944 Lahore 33), it has been held that section 3 of the Defence of India (Amendment) Ordinance (14 of 1943) is intra vires and effective. Therefore, the detention of a person cannot be questioned on the ground that rule 26 of Defence of India Rules, as originally framed, was declared as ultra vires by the Federal Court.
5. For elucidating the matter further, the provisions of Act X of 1980 are reproduced as under:--- "1. Short title, extent and commencement.--(1) This Act may be called the Employees' Old-age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act, 1980.
(2) It extends to the whole of Azad Jammu and Kashmir.
(3) It shall come into force at once.
2. Act XIV of 1976, etc., to apply to Azad Jammu and Kashmir.---The provisions of the Employees'
Old-age Benefits Act, 1976 (XIV of 1976), and the rules, regulations and orders made thereunder, as in force in Pakistan from time to time, shall apply to Azad Jammu and Kashmir; and the Employees'
Old-age Benefits Institution established under the said Act shall be competent to exercise and perform in Azad Jammu and Kashmir the same powers and functions as it may exercise and perform in Pakistan.
3.
6. It is evident that the first part of the section 2 of the aforesaid Act, whereby Act XIV of 1976 was adapted in Azad Kashmir, is valid and only the second part of section 2, whereby the functions of EOP Institution were extended to the State, was held violative of the Interim Constitution Act, 1974.
However, in paragraph 26 of the judgment under review, Act X of 1980 has been held void as a whole despite the fact that the first part of section 2 of the Act is separable from the second part and can survive independently.
7. Therefore, we accept the review petition and hold that the observations made in paragraph 26 of the judgment under review, whereby the Act X of 1980 has been held violative of the Interim Constitution Act as a whole, is amended in terms that only the second part of section 2 of the said Act is void as being violative of the Interim Constitution Act and the rest of the provisions of the said Act are valid. Consequently, the validating Act III of 1985 is also valid to the extent of the aforesaid amendment in the impugned judgment; the judgment under review stands amended as indicated above. Revision petition accepted.