SYED MANZOOR H. GILANI, J.~ This petition under section 44 of Azad Jammu and Kashmir Interim.
Constitution Act, 1074 is tiled hy the petitioner for a declaration that right-of formation of a political party in ' Azad Kashmir is vested in the state subjects and no non-state subject can form a party, neither operation of a non-state subject- party can he extended to Azad Kashmir. The formation of Pakistan Peoples. Party and Pakistan Muslim League (J) whose heads are allegedly Mohtarma Benazir Bhutto and Hainid Nasir Chatta respectively, who are non-state subjects and are alleged have formed in violation of the Constitution and daw enforce in. Azad Kashmir, their parties. The election of the members of the assembly and AJ&K Council listed in the petition are alleged to by in violation of the constitution and consequently it is prayed that their election as such, be declared as without lawful authority The orders passed by the members in their capacity as a minister of the government etc. Are alleged to be without lawful authority" and liable to be quashed. The petitioner seeks the relief that their seats may be declared as vacant and election commission may be directed to conduct the election under law.
2. We have heard the petitioner who is an advocate by profession at length, It is contended by the petitioner that respondents. 1 and 2 are admittedly non-state subjects who have extended the formation -of their parties to Azad Kashmir in the name of Pakistan Peoples Party and Pakistan Muslim League (J). Respondents 4 to 39 are elected to the legislative assembly of Azad Kashmir while, respondents 40 to 42 are elected as members of the AJ&K Council on their tickets. The petitioner contends that as the election of the above-referral respondents is in consequence of the tickets of a party formed extended to Azad Kashmir by the non-state subjects, their elections is therefore, void and the seats are liable to be declared as vacant. According to the petitioner respondents ! And 2 being foreigners, extension and formation of their parties in Azad Kashmir is.
Therefore, a foreign aided party. The petitioner referred to sub section (7) of section 4 of AJ&K Interim Constitution Act. Whereunder only the state subjects have a right to form an association or union.
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 Party 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 whereafter the matter shall be referred by the Govt, to the Supreme Court whose decision shall, be final. Relevant Section 9 of the Political Parties Act, 1985 is reproduced as-follows:- "(9) Dissolution of political parties.- (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 the sovereignty and integrity of Pakistan or security of Azad Jammu and Kashmir or 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 sub section (2) stand dissolved, and its all properties and funds shall be forfeited to the government.
(2) Within fifteen days of the making of a declaration under sub section (1) 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 sub-section (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 view of the provisions pf section 8 of the Political Parties Act, the alternate and efficacious remedy if any. Being available, the petition to the extent of declaration of-the parties attributed to respondent 1 and 2, as a foreign party or a foreign aided party, can be agitated before the government only and in ease 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 enforce for the remedy declaration sought by the petitioner, the petition before the High Court is incompetent.
5. As for declaring the seats of respondents 4 to 42 as vacant is concerned, same is also regulated by sub-section (2) of section 25 of the Constitution, hence the alternate remedy being available to that extent under the Constitution, the petition is not maintainable.
6. In view of above, petition is dismissed in limine, KH. MUHAMMAD SAEED, C.J. (CONCURRING):- I have gone through the judgment recorded by my learned brother Mr. Justice Sayed Manzoor Hussain Gillani, I am in agreement with the view expressed by the learned Judge that under Section 9 of the Political Parties Act, an alternative and efficacious remedy was available but I am unable to contribute with the view expressed by the learned Judge, that the remedy under Section 25(2) of AJK Interim Constitution Act, 1974, was available to the petitioner.
Section 25(2) of AJK Interim Constitution Act, 1974 contained as under:- "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".
The aforesaid provision deals with the disqualification occurring after the election to the Assembly.
In the instant case, the case of the petitioner was that the non-petitioners were elected on the tickets of the Pakistan Peoples Party and Muslim League (Chatta Group). The constitution of both the said Parties, was illegal and unconstitutional the election of the non-petitioners Nos. 4 to 39 as Members of the Assembly and non-petitioners Nos. 40 to 42, as Members of Kashmir Council, was unconstitutional and illegal According to the petitioner, the non-petitioners No 4 to 42 were not eligible to contest the election. Section 25(2) of AJK Interim-Constitution Act, 1974 has no concern with the proposition raised in the instant case.
Assuming for the sake of arguments that the disqualification had occurred after the election.
Maugre ot" this, the Constitutional jurisdiction of this Court, was not barred. The superior Judiciary is vested wirt the ^inherent and special jurisdiction, and rs quite competent-to examine the vires of- law and is authorised to lay its hands to set aside the legal controversies- at rest. Same like proposition anise before the High Court, AJK. In the case titled "Kh. Noor-u-Amin, Advocate Kv Col.
(Retd) Muhammad, Naqi Khan." reported in PLD 1990 AJK page 42 relevant page 52 in which the High Court observed as under:- "It is the duty of-the Court to construe the provisions of the Constitution or subordinate legislation to resolve the controversy, In the like manner, it is the superior judiciary' alone which Is conferred with jurisdiction to ascertain the verse of law. The Chief Election Commissioner not being a Court is not empowered to decide the vires of statute. Thus, the superior judiciary vested with inherent and special jurisdiction is quits, competent to examine the vires of law. In such situation, the superior judiciary is patently authorised to lay its hands to set aside the legal controversies at rest".
As stated above, I am in agreement with the view expressed by the learned Judge that alternative remedy under Section 9 of the Political Parties Act, was available to the petitioner, so, I am also in agreement with the conclusion drawn by the leamed Judges.