' MUHAMMAD YUNUS SURAKHVI, J.--- This second appeal, with the leave of the Court, has been directed against the judgment and decree passed by the High Court on 4-5-2000, whereby the appeal filed by the appellant herein was dismissed and the cross-objections filed on behalf of defendant-respondents were accepted. The order of costs of improvements awarded by the District Judge amounting to Rs,6,000 was also set aside.
2. The necessary facts, giving rise to the present appeal, are that the plaintiff-appellant filed two suits seeking declaration for the land measuring 9 Kanals, 15 Marlas, comprising Survey No,100 min, Khata No,38, Khewat No,14 and land measuring 9 Kanals, 6 Marlas comprising Survey Nos.101 min and 81 min, Khata No,35, Khewat No,13, situate in village Shalabagh, Tehsil and District Muzaffarabad, alleging therein that the plaintiff-appellant was owner of the aforesaid land on the basis of mortgage-deeds, which were, as a matter of fact, sale-deeds but were executed as mortgage-deeds in view of law prohibiting the sale for more than 1/4th of the total estate, in the Court of Sub-Judge, Muzaffarabad. Both the suits were consolidated. The defendant-respondent repudiated the claim of plaintiff-appellant by filing the written statement. The trial Court framed as many as 12 issues including the one for relief. The evidence was led by both the parties and after hearing them the learned Sub-Judge dismissed the suits and appeal filed with the District Judge was also dismissed. However, the District Judge awarded the costs of improvements of Rs,6,000 to plaintiff-appellant. The judgment and decree passed by the District Judge were assailed by filing a second appeal before the High Court. Cross-objections were also filed by the defendants- respondents under Order XLI, C.P.C. The High Court also dismissed the second appeal and set aside the order passed by the District Judge granting Rs,6,000 as improvements to the plaintiff- appellant. It is the aforesaid judgment and decree of the High Court passed on 4-5-2001 which is the subject-matter of present appeal.
3. In support of appeal it was vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the appellant, that both the Courts below as well as the High Court failed to appreciate the documents Exhs."PA" and "PB" which were in fact sale-deeds but due to law prohibiting the sale for more than 1/4th of total estate the same were executed as mortgage-deeds. However, the nature and contents of documents fully support the claim of appellant, wherein it was mentioned .
That after the repeal of the aforesaid law the same would be treated as sale-deeds. The learned counsel contended that Habibulalh, deceased defendant, was owner of land in dispute who transferred the land measuring 9 Kanals, 19 Marlas, through a sale-deed executed on 31-1-1956 for a consideration of Rs,500 as such alienated the land measuring 19 Kanals, 11 Marlas, through two conditional mortgage-deeds against the consideration of Rs,1,000. The law prohibiting the sale- deeds having ceased to exist the mortgage-deeds were to be treated as sale-deeds. It was strenuously argued by the learned counsel for the appellant that evidence led by the parties, particularly that of plaintiff-appellant, was not appreciated in its true perspective thus wrong conclusions were drawn. It was further argued by the learned counsel that during the pendency of suit the suit land was transferred through a gift deed executed on 11-3-1979 which was illegal and not maintainable for the reasons, (i) that under section 52 of Transfer of Property Act the transfer during the pendency of suit did not create any right whatsoever in favour of respondents and (ii) that admittedly the suit land was in possession of plaintiff-appellant as such the execution of gift deed was not complete and it had no legal sanctity. The learned counsel also contended that the plaintiff-appellant made improvements over the suit land to the tune of Rs:3,80,000 which is abundantly proved by the statement of Commission appointed by, the Court but the trial Court did not advert to the aforesaid claim. The District Judge allowed the claim to the extent of Rs,6,000 which was also against the evidence produced by the plaintiff-appellant. The learned counsel for the appellant in support of his contentions relied upon Talib Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah. 4 wherein it was observed that where purchaser of property had acted in good faith by taking all reasonable care to ascertain title of his vendor who was continued to be shown in Revenue Record to be the owner of land, such transaction would be protected under section 41 of Transfer of Property Act, 1882.
4. In reply Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, by controverting the arguments advanced by the learned counsel for the appellant, vehemently contended that the documents Exhs. "PA" and "PB" on the basis of which two declaratory suits were filed on behalf of plaintiff-appellant were mortgage-deeds which were executed as such and could not be stretched as sale-deeds in any manner. The learned counsel contended that the plaintiff- appellant failed to prove the fact of documents Exhs. "PA" and "PB" being executed as sale-deeds in view of their contents. The learned counsel has pressed into service the submission that the contents of documents show beyond any manner of doubt that the same were mortgage deeds for all intents and purposes. The learned counsel emphasized that the plaintiff-appellant failed to produce any law prevailing at the time prohibiting the alienation which led the executants to execute the mortgage-deeds. The learned counsel further contended that the transfer of suit land through a gift-deed did not affect in any manner the rights of plaintiff-appellant as such his claim of satne being registered against the law had no substance. It was also contended by the learned counsel that the executant of gift-deed, the donor and donee, were owners in the Khewat as such it was not required that physical possession of suit land should have been transferred to donee. Even otherwise no such condition was necessary for the completion of gift deed in the circumstances of the case. The learned counsel strenuously argued that both the Courts below as well as the High Court have concurrently held that the mortgage-deeds Exhs. "PA" and "PB" were not in any way proved to be the sale-deeds nor the intention of parties was to execute the sale-deeds. The transfer of the suit land through gift-deed was also held valid as such the contention of the appellant was repelled. Therefore, no illegality or misreading or non-reading of evidence worth interference was pointed out by the learned counsel for the appellant. It was also argued by the learned counsel that the trial Court after due consideration of facts disallowed the claim of improvement of the plaintiff-appellant. The District Judge erroneously allowed the costs .Of improvements of Rs,6,000 to be paid to the plaintiff appellant and the same is against the facts and not tenable. The learned counsel in support of his contentions referred to reported cases titled Fazal Haque and others v. M.D. Afan and another PLD 1971 Dacca 158. Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K)
63. State Bank of Pakistan v. Khaledar M.A. And others PLD 1963 Dacca 844 and unreported cases titled Abdul Rehman and another v. Alif Din and others. Civil Appeal No, 144 of 1998, decided on 25-2-1999 and Mir Matiullah and others v. Ch. Ahmad Misri and others Civil Appeal No,185 of 1998, decided on 16-2-1999.
5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the plaintiff-appellant in order to prove his case produced Muhammad Hussain, Kh. Abdus Samad, petition-writer, Muhammad Yaqoob Khan, Sahrif-ud-Din, Mastan Khan and got his own statement recorded. In addition to the oral evidence the documentary evidence Exhs. "PA", "PB", "PC" and "P2/1" was also produced by the plaintiff-appellant while the defendant-respondents brought on record the evidence of Sakhi Hussain Shah, Shah Jahan, Attaullah Khan and Ali Akber, one of the defendants, also appeared as witness in addition to the documentary evidence gift-deed Exhs.
"DA" and "DC". The oral evidence led by parties is not of much significance, however, the documentary evidence would be discussed in the later part of this judgment.
6. The controversy which requires determination between the parties is related to two documents Exhs. "PA" and "PB" which are claimed by plaintiff-appellant to be sale-deeds in view of their contents and attending circumstances. It was urged by the learned counsel for the appellant that Habibullah, deceased defendant, executed a sale-deed against a consideration of Rs,500 in favour of plaintiff-appellant which according to him was 1/4th of the total land belonging to him as such he could not alienate further land in view of law prevailing at the relevant time prohibiting the alienation of more than 1/4th, therefore, it was ' asserted that mortgage-deeds were executed against a consideration of Rs,1,000 and this consideration amount was the same as was fixed in the sale-deed. We have carefully perused the documents Exhs. "PA" and "PB" which on the face of it, are mortgage deeds. However, it was stipulated in the mortgage-deeds that after the removal of restriction those would be treated as sale-deeds. It was also incorporated therein that the land in dispute was mortgaged for a period of 21 years and the mortgagor shall have right to redeem it after the aforesaid period on payment of consideration amount, failing to do so mortgage-deeds would be treated as sale-deeds.
7. The first question that needs consideration is whether any such law restricting the transfer or alienation of land more than 1/4th was in force at the relevant time when the aforesaid mortgage- deeds were executed. The learned counsel for the appellant referred to section 5 of Azad Jammu and Kashmir Alienation of Lands Act, 1995 B.K. In support of his contention but the same being irrelevant is not applicable in the instant case. In the aforesaid section it is nowhere provided that alienation of more than 1/4th of the land was prohibited in the State of Jammu and Kashmir.
8. The next question arises whether a document executed as mortgage-deed could be termed or treated as a sale-deed in view of any condition inserted in it against the law. In the unreported case titled Mir Matiullah and others v. Ch. Ahmed Misri and others Civil Appeal No,185 of 1998, decided on 16-2-1999 this Court in paras. 6 and 7 of the judgment ,nade the following observations while dealing with almost similar proposition:-- "6. We have given due consideration to the arguments raised at the Bar and we are of the 'opinion that under section 10 of the Ordinance, a usufructuary mortgage which is 20 years old or the period for which the property was mortgaged had expired, the Collector had the power to order the restoration. For the sake of convenience, section 10 of the Ordinance is reproduced as under: ' The mortgagor of any subsisting usufructuary mortgage not less than twenty years old, or of any "usufructuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.'
7. As in the instant case, the mortgage was 21 years old, i,e, more than 20 years, the Collector had the jurisdiction to order the . Restoration of the same and the argument that it could not be restored or redeemed before the expiry of 90 years is not tenable and is hereby repelled."
' In another case titled Abdul Rehman and another v. Alif Din and others Civil Appeal No, 144 of 1988, decided on 25-2-1999 this Court in para. No,8 of the judgment gave the verdict which is reproduced as under:--- "8. After giving our due consideration to the arguments raised at the Bar, we are of the opinion that under section 10 of the Azad Jammu and Kashmir Redemption and Restitution of Mortgaged Lands Ordinance, 1969, a usufractuary mortgage which is 20 years old or the period for which the property was mortgaged had expired, the Collector had the power to order the restoration.
' For the sake of convenience, section 10 of the said Ordinance is reproduced hereunder:--- ' The mortgagor of any subsisting usufractuary mortgage not less than twenty years old, or of any usufractuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.'
' As in the instant case the mortgage was more than 60 years, the same could have been redeemed. Therefore, the argument that it could not be restored or redeemed before the expiry of 90 years is not tenable and is hereby repelled."
' Reference may also be made to a case reported as Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63 wherein it was observed as follows:--- "Any condition imposed in the deed of mortgage which places any restriction on right to redeem the mortgage is a clog on the equity of redemption and is repugnant to law."
9. Relying upon the aforesaid authorities it can safely be concluded that the conditions incorporated in the mortgage deeds would not change their basic character. Therefore, there is no substance in the contention of the learned counsel for the appellant claiming these documents having been registered as sale-deeds. It may also be pointed out that under Articles 102 and 103 of the Qanun-e-Shahadat no evidence could be given in proof of terms of disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. Articles 102 of the Qanun-e- Shahadat reads as under:--- ---When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. .."
Section 103 of he Qanun-e-Shahadat is couched in a following manner:--- - "Exclusion of evidence of oral agreement.--- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been provided according to the last Article, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in- interest for the purpose of contradicting, varying, adding to, or subtracting from, its term: xxx XXX XXX XXX. XXX XXX."
10. Keeping in view the aforesaid provisions of the Qanun-e-Shahadat the basic requirement of law is to see the terms incorporated in the documents which show beyond any manner of doubt that both the documents Exhs. 'PA' and `PB' were in fact mortgage-deeds and by no stretch of imagination could be construed to be sale-deeds.
11. The contention raised by the learned counsel for the appellant that the gift-deed was not complete as the possession was not delivered to the donee is without any substance. It would be sufficient to point out that taking possession of subject-matter of gift by donee either actually or constructively completes the gift. It may also be added that the suit-land was mortgaged, as such constructive possession was sufficient for the satisfaction of necessary conditions required for a valid gift. The donor and donee were also owners in the same Khewat. It would also not be out of place to mention that the mortgagee had no legal right to challenge the gift-deed."
12. So far as the question of claim of improvements by the appellant is concerned, in our view, the costs of those improvements are awarded to a particular party which makes improvements in good faith but in the instant case on the basis of mortgage-deeds the plaintiff-appellant has asserted his title by alleging that mortgage-deeds were in fact sale-deeds and as such he may be declared to be the owner' of the land mortgaged to him. In this view of the matter, the plaintiff- appellant is not entitled to claim any costs for improvements on the suit-land. Both the Courts below and the High Court have concurrently held that the documents Exhs. "PA" and "PB" were mortgage-deeds and could not be construed as sale-deeds.
' In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs.
Appeal dismissed.
2001 CLC 1130 [Supreme Court (AJ&K)] Present: Sardar Said Muhammad Khan, C.J., Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ Ch. MUHAMMAD YOUSAF---Appellant versus THE STATE and 4 others---Respondents Civil Appeals Nos.50 and 52 of 2001, decided on 2nd August, 2001.
(On appeals from the judgment of the High Court, dated 30-5-2001 and 31-5-2001 in Writ Petitions Nos.332', 336, 77, 345 and 358- of 2001).
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----Ss. 4 & 44---Violation of Fundamental Rights---Writ jurisdiction, exercise of---Threatened violation of a Fundamental Right would also give a right to avail writ jurisdiction of High Court. [p.
1138] A
(b) Interpretation of statutes--- ----Where meanings of a word or term used in a statute were clear and ' unambiguous, Court could not go beyond such meanings and had to take them in their ordinary dictionary meanings.
[p. 1139] B
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----S. 24---Qualifications and disqualifications of Members of Assembly---Power to provide disqualification under sub-clause (f) of subsection (2) of S.24 of Azad Jammu and Kashmir Interim Constitution Act, 1974, could be exercised by enacting law---Under. Scheme of Azad Jammu and Kashmir Interim Constitution Act, 1974, law could be enacted either by Assembly or when it was not in session through promulgation of an Ordinance by President, if he was satisfied that CLC circumstances existed which rendered it necessary to take immediate action in that behalf--- "Qualifications" and "disqualifications" provided in S.24 of Azad Jammu and Kashmir Interim Constitution Act, 1974 by enacting law under authority of sub-clause (0 of subsection (2) of S.24 of the Constitution were two shades of the same picture and were so interchained to each other that both of them must be read together and not in isolation of each other---Person who fulfilled requirement of "qualifications" laid down under S.24(1) of the Constitution and also did not suffer from any of "disqualifications" laid down under the Constitution and the law enacted in exercise of powers under S.24(2)(f) of the Constitution, could contest election for legislative body of Azad Jammu and Kashmir. [p. 1140] C Jammu and Kashmir Tehrik-e-Ammal Party v. The Azad State of Jammu and Kashmir PLD 1985 (Azad J&K) 95; Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain PLD 1995 Lah. 541; Messrs S.A. Haroon and others v. The Collector of Custom, Karachi and another PLD 1959 SC (Pak.) 177; The Working Muslim Mission and Literary Trust, Lahore and another v.
The Crown PLD 1956 FC 209; S.M. Ayub v. Syed Yusaf Shah PLD 1967 SC 486; Mian Shahbaz Sharif v.
Muhammad Tariq Khan v. The State and another PLD 1998 SC (AJ&K) 17, Raja Muhammad Niaz Khan v. Azad Government PLD 1988 SC (AJ&K) 53; Pir Sabir Shah v. Shad Muhammad .Khan PLD 1995 SC 66; Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983. SC 457; Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527; Pir Shujaat Hussain Qureshi v. Alhaj Raees Ahmad Qureshi PLD 1988 SC 118; Muhammad Yousaf v. M. Irshad Sipra and others 1988 CLC 2475; The State of Bihar v.
Reghunandan Singh and another AIR 1960 Pat. 530; Dr. Muhammad Akram v. Allotment Committee, Mirpur Development Authority PLD 1985 SC (AJ&K) 113 and Azad Government v. Genuine Rights Commission 1999 MLD 268 ref.
(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----S. 4---Fundamental Right---Freedom of association---Every State subject had been given right to form an association of his choice---Such association would continue unless its activities were curtailed through reasonable restriction imposed by law in the interest of morality and public order-Contention that right to form' an association would automatically, confer a right to contest elections for. Legislative Assembly was repelled. [p. 1143] D Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95 ref.
(e) Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970--- . ----S. 5(2) & Chap. XXV---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4--- Fundamental Right 7---Right to contest election---Qualification---Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 allowed entry only of such persons in Legislative body who were either Matriculate or had equivalent qualification---Such restriction would not come within mischief of Fundamental Right No,7. [p. 1144] E
(f) Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970-- ----S. 5(2), cl.(xxv)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4--- Fundamental Rights, 7, 15 & S.41---Right to participate in election had been made available to State subjects by a statute and not under any Fundamental Right conferred by Constitution--- Constitution had authorized Legislative Assembly to enact law relating to election of Legislative Assembly---Legislative powers could be exercised either by Assembly or under S.41 of Constitution by President---Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 promulgated by President had same force and effect as an Act of Assembly---President in the present case having competently promulgated Election Ordinance, 1970, it could not be said that same lacked legal competence---Contention that Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 was opposed to F.Rrs.7 & 15 was repelled. [pp. 1145, 1146] F & G Raja Muhammad Niaz Khan, Ex-Chairman, Azad Jammu and Kashmir Mineral and Industrial Development Corporation v. Azad Government of the State of Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53 ref.
(g) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----Ss. 4, 24 & 31---Law-making process---Scope---No law could be made against provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974 and if any law was unreasonable and it offended against any of the Fundamental Rights same could be struck down. [p. 1147] H
(h) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----Ss. 31 & 41---Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970, S.5(2) & Ch.XXV---Enactment of law---Attributions of malice to Legislature---Malice could not be attributed to Legislature without any strong proof-----Law could be enacted either by Assembly or by President in exercise of power available to him under S.41 of the Constitution Act, 1974---Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 promulgated by President had same force and effect as that of Act of Assembly---Presumption that law was made with bona fide reasons, would apply to such law which was enforced by 'the President through an Ordinance- --Argument that Ordinance, 1970 had been enacted only with mala fide intention, could not be entertained in absence of any evidence in support of such allegations. [p. 1148] I Raja Muhammad Niaz Khan, Ex-Chairman, Azad Jarnmu and Kashmir Mineral and Industrial Development Corporation v. 'Azad Government of the State of Jammu and Kashmir, Muzaffaraba PLD . 1988 SC (AJ&K) 53; K. Veerabhadrayya's case AIR 1950 Mad. 243 and Fauji Foundation and another v.
Shamim-ur-Rehman PLD 1983 SC 457 ref.
(i) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----Ss. 22 (1)(c) & 24---Election of Legislative Assembly-Qualifications . And Disqualifications of Members of Assembly---Qualification provided under S.22(1)(c) of the Constitution for an Aalam- e-Din and condition of being a Matriculate or having equivalent qualifications for contesting election to Legislative Assembly as incorporated in list of disqualification, could co-exist in one person. [p. 1149] J Abdul Majeed Mallick, Advocate assisted by Mirza Muhammad Nisar, Advocate for Appellants (in both the Appeals).
Khawaja 'Attaullah, Additional Advocate-General for, Respondents Nos.1 and 2 (in Civil Appeal No,50 of 2000).
M. Tabassum Aftab Alvi, Advocate fot Respondents Nos.1 and 2 (in Civil Appeal No,51 of 2001).
Date of hearing: 6th June, 2001.
' KHAWAJA MUHAMMAD SAEED, J.--- The above-titled two appeals are directed against a consolidated judgment of the High Court passed on 31-5-2001 whereby 4 writ petitions filed by 4 different persons including Ch. Muhammad Yousaf appellant, herein, challenging the vires of clause (xxv) of subsection (2) of section 5 of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 (hereinafter shall be referred as the Ordinance) were rejected. In both the appeals common question of law arising out of identical facts were raised, therefore, these were heard together and dismissed through a short order of this Court, dated 7-6-2001. These are the reasons in support of the said short order.
2. Common facts claimed by the appellants briefly stated are that they being State Subjects of Azad Jammu and Kashmir State are enrolled as voters in their respective Constituencies. Appellant Ch. Muhammad Yousaf became Member of the Azad Jammu and Kashmir Legislative Assembly in general elections held in 1985 and 1991 and had acted as Senior Minister in the Government whereas the other appellant was a Mem r of the Legislative Assembly when the Ordinance in question was prom gated by the Azad Jammu and Kashmir Government. Both the appellants have raised a serious objection that the , Ordinance was promulgated after the Chief Election Commissioner had announced the Election Schedule for the Election of the Azad Jammu and Kashmir Legislative Assembly to be held on 5th July, 2001. According to the appellants the impugned Ordinance was ultra vires the Constitution as it was against the teachings of Qur'an and Sunnah and further that it amounts to amending the Constitution. According to appellant Ch. Muhammad Yousaf the impugned legislation was mala fide as according to him in 1996 the Prime Minister in chair had approached him to join the People's Party but he refused to change his political allegiance.
3. In written statement the respondents denied the averments of the writ petitions. In their written statement before the High Court and in concise statement before this Court the respondents have defended the impugned Ordinance and maintained that it was properly promulgated by the President in accordance with the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as the Constitution Act) as he was authorized by sub-clause (f) of subsection (2) of section 24 of the same. According to them by promulgating this . Ordinance no restriction has been imposed upon the freedom of association nor . Any "qualification" has been converted into disqualification. In the same way according to the respondent the Ordinance does not offend against subsection (5) of section 31 of the Constitution Act. The respondents have also refuted the allegation of mala fide and have categorically stated that law can be promulgated at any time. According to respondents the impugned Ordinance was enforced much before the last date fixed by the Chief Election Commissioner for filing the nomination papers. They have further pleaded that the impugned law shall apply to all State Subjects, thus allegation of arbitrary and discriminatory treatment attributed by the appellant to this Ordinance is without any justification,
4. In the background of these pleadings the Full Bench of the High Court after hearing finally dismissed the writ petitions filed by the petitioners therein vide judgment, dated 30-5-2001. Out of petitioners who had invoked the Constitutional jurisdiction of the High Court only Ch. Muhammad Yousaf has approached this Court through petition for leave to appeal. Ch. Muhammad Yasin, a Member of the Ruling Party, also feeling aggrieved by this Ordinance and the judgment of the High Court filed petition for leave to appeal. As law points of great public importance were raised, therefore, petitions filed by both the appellants were converted into appeals and heard together.
5. Mr. Abdul Majeed Mallick, the learned counsel for the appellants, challenging the validity of the judgment of the High Court made following submissions in support of the appeals:-
(i) That the condition having a matric or equivalent 'qualification' for contesting election to the Azad Jammu and Kashmir Legislative Assembly is in fact a 'qualification' within the meaning of section 24(1) of the Constitution Act, which could be enacted only by making amendment in the Constitution. According to him due to this reason initially through an Ordinance No,XXVI of 2001 this condition was included in the list of qualifications. Subsequently the Government realized that this condition cannot be added in the list of the `qualifications' through an Ordinance, therefore, in exercise of the powers available under sub-clause (f) of subsection (2) of section 24 of the Constitution Act this 'qualification' was added in the list of `disqualification' .
(ii) That the impugned Ordinance has been promulgated with mala fide intentions. While elaborating his arguments he submitted that the Government in power apprehending the success of the present appellants in the general elections promulgated the Ordinance to deprive them of contesting election in order to ensure success of its liked candidates. He. Further argued that the impugned Ordinance is violative of the Fundamental Rights Nos.7 and 15 guaranteed by the Constitution Act, which right could be taken away only through reasonable restrictions imposed by law in the interest of morality or public order. He further submitted that the impugned Ordinance has been enforced after the announcement of the Election Schedule by the Chief Election Commissioner without providing political parties reasonable time to make readjustment or to the aggrieved persons to improve their 'qualifications', therefore, the manner in which this new 'qualification' has been imposed in the shape of `disqualification' impliedly proves mala fide on the part of the respondents. He relied on Jammu and Kashmir Tehrik-e-Ammal Party v. The Azad State of Jammu and Kashmir PLD 1985 (AJ&K) 95 and Mian Shahbaz Sharif v. Chaudhry Muhammad .
Altaf Hussain PLD 1995 Lah.
541.
(iii) According to learned counsel this amendment cannot be absorbed in the Scheme of Constitution as under section 22(1)(c) of the Constitution Act one member of the Legislative Assembly has to be an Aalam-e-Din who under the Constitution Act must be well-versed with the teachings of Islam. No other 'qualification' has been laid down under the Constitution Act for such a Member whereas under the impugned Ordinance he must be also matriculate or possessing equivalent 'qualification' for being a Member of the Legislative. Assembly. By this amendment in fact the Constitution Act has been amended through an Ordinance which was beyond the jurisdictional competence of the President. He further submitted that as the term 'disqualification' has not been defined in the relevant rules, therefore, it shall be read in ordinary dictionary meanings. He in this connection relied on following authorities:---
(1) Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan PLD 1959 SC (Pak.) 177,
(2) The Working Muslim Mission and Literary Trust, Lahore and The Civil and Military Gazette Ltd., Lahore v. The Crown PLD 1956 FC 209, (3) S.M. Ayub v. Syed Yusaf Shah PLD 1967 SC 426, Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others PLD 1995 Lah.
541.
' The authorities referred to by the learned counsel for the appellants shall be discussed at proper place in coming parts of this judgment.
6. While controverting the arguments of the learned counsel for the appellants, Khawaja Attaullah, Additional Advocate-General and Mr. M. Tabassum Aftab Alavi, the learned counsel for the respondents, argued that no order adverse to the interest of the appellants was passed in the light of the amending Election Ordinance, therefore, the writ petitions were premature which should have been rejected on this ground without discussing merits of the case. In the same way, according to them, the appellants are not so far aggrieved persons as such cannot maintain appeal before this Court. They further argued that the amending Election Ordinance was within the legislative competence of the President and does not contravene the Fundamental Rights Nos.7 and 15 contained in section 4(4) of the Constitution Act, as argued from the appellants side. They also contended that the right to contest election is not recognized as a Fundamental Right. It can be exercised by those who fulfil the requirements as laid down by the Constitution Act and law enacted under the authority of the Constitution. According to them malice cannot be attributed to the Legislature. They in support of their arguments relied on following case-law:--
(1) Muhammad Tariq Khan v. The State and another PLD 1998 SC (AJ&K) 17; (2) Raja Muhammad Niaz Khan v. Azad Government PLD 1988 SC (AJ&K) 53, (3) Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66, (4) Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457, (5) Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others PLD 1995 Lah. 541, (6) Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527, (7) Pir Shujaat Hussain Qureshi v. Alhaj Raees Ahmad Qureshi PLD 1988 SC 118, (8) Muhammad Yousaf v. M. Irshad Sipra and others 1988 CLC 2475, (9) The State of Bihar v. Reghunandan Singh and another AIR 1960 Pat. 530, (10) Dr. Muhammad Akram v. Allotment Committee, Mirpur Development Authority PLD 1985 SC (AJ&K) 113.
7. We have heard the learned counsel for the parties and gone through the record of the case. First of all it appears appropriate to attend the preliminary objection of the respondents that writ petitions before the High Court were not justified as no order adverse to the interest of the petitioners thereto was passed by the concerned Returning Officers in the light of the impugned legislation and further that the right of appeal has been wrongly availed of by the appellants before this Court. In support of their objection it was submitted by the learned Additional Advocate-General that Election Schedule was published in the official Gazette on 22nd May, 2001.
According to this Gazette Notification the persons interested in contesting election for legislative body were required to file their nomination papers before the Returning Officers up to 1st June, 2001.
7th June, 2001 was fixed for the scrutiny of the nomination papers. On this date on the basis of the 'qualifications' and 'disqualification' the paper of any candidate would have been rejected. The writ petitions were filed much earlier by Ch. Muhammad Yousaf and 3 others, therefore, these petitions were premature as such were liable to be dismissed on this very ground. In our view this objection has got no force in it..
8. Ch. Muhammad Yousaf and 3 others through their writ petitions challenged the *fires of the impugned legislation. It was, therefore, not necessary for them to wait till the time their nomination papers were rejected by the Returning Officers. A threatened violation of a Fundamental Right also gives a right to avail Constitutional jurisdiction of the High Court, therefore, the writ petition was rightly filed by Ch. Muhammad Yousaf in the High Court and after its dismissal he as well as the other appellant feeling aggrieved from the impugned legislation and the judgment of the High Court, have rightly availed the. Appellate jurisdiction of this Court. The High Court has rightly rejected this objection.
9. Having disposed of the above-referred objection we advert to the points raised before us by the learned counsel for the appellants in the light of the law referred by him. The main point raised by Mr. Abdul Majeed Mallick, the learned counsel for the appellants was that in fact through impugned Ordinance the Government has provided an additional 'qualification' for being a matriculate or having equivalent 'qualification' for contesting the election to the Legislative Assembly of Azad Jammu and Kashmir: According to him 'qualifications' have been provided under section 24(1) of the Constitution Act. Nothing can be added to them through . An Ordinance. According to him due to mala fide intention initially an Ordinance was promulgated whereby this additional condition was added in the list of 'qualifications' but subsequently the Government took that Ordinance back and promulgated the impugned Ordinance whereby this condition has been included in the list of 'disqualifications'. He further argued that as the term 'qualifications' or 'disqualifications' have not been defined in the Election Laws, therefore, these terms shall read in their ordinary dictionary meanings. He relied on cases titled Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan PLD 1959 SC (Pak.) 177, The Working Muslim Mission and.
Literary Trust, Lahore and the Civil and Military Gazette Ltd., Lahore v. The Crown PLD 1956 FC 209, S.M. Ayub v. Syed. Yusaf Shah PLD 1967 SC 486 and Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain Qureshi, Governor of Punjab, Lahore and 2 others PLD 1995 Lah. 541, wherein it is laid down that if any word or term used in any statute has not been defined in the statute itself then such word or term shall be read in its ordinary dictionary meanings and further that if such word or term has different meanings the one which fits in with the context should be accepted. He relied on the definition of 'qualification' given in Black's Law Dictionary, 5th Edition at page16 which is as follows:-- "The possession by an individual of the qualities, properties, or circumstances, natural or adventitious, which are inherently or legally necessary to render him eligible to fill an office or to perform a public duty or function. Thus, a 'qualified voter' is one who meets the residency, age, and registration requirements.
' Also, a modification or limitation of terms or language; usually intended by way of restriction of expression which, by reason of their generality, would carry a larger meaning than was designed."
' At page 424 of the same dictionary, the 'disqualification' has been defined in following words:-- "To divest or deprive of qualifications; to incapacitate; to render ineligible or unfit, as, in speaking of the 'disqualification' of a Judge by reason of his interest in the case, of a juror by reason of his holding a fixed reconceived opinion, or of a candidate for public office by reason of non-residence, lack of statutory age, previous commission of crime, etc."
10. We have no quarrel with the proposition laid down in above-referred authorities as these contain the cardinal canon of interpretation that when .The meaning of a word or term used in a statute is clear and unambiguous, the Court cannot go beyond them and has to take them in their ordinary dictionary meanings. We also agree with him that without amending the Constitution no 'qualification' can be added in subsection (1) of section 24 of the Constitution Act. As the dispute relates to the 'qualifications' and disqualifications' of a Member of Assembly, therefore, it appears appropriate to have the reference of section 24 of the Constitution Act which is as follows:-- "24. Qualification of members of the Assembly.--- (1) A person shall be qualified to be elected as, and to be, a member of the Assembly if-
(a) he is a State. Subject;
(b) he is not less than twenty-five years of age; and
(c) his name appears on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan.
(2) A person shall be disqualified from being so-elected if-
(a) he is of unsound mind and stands so declared by competent Court; or
(b) he is an undercharged insolvent unless a period of ten years has elapsed since his being adjudged as insolvent; or
(c) he has been on conviction for any offence sentenced to transportation for any term or imprisonment for a term of not less than two years unless a period of five years has elapsed since his release; or
(d) he holds any office of profit in the service of Azad Jammu and Kashmir or in the service of Pakistan other than an office which is not a whole time office remunerated either by salary or by fee other than an office specified in the Second Schedule; or . (e) he has been dismissed for misconduct from the service of Azad Jammu and Kashmir or the service of Pakistan unless a period of five years has elapsed since his dismissal; or
(f) he is otherwise disqualified from being a member of the Assembly by this Act or by or under any other law."
11. From the bare reading of the above provision of the Constitution Act it becomes clear that under sub-clause (f) of subsection (2) of section 24 the power to provide 'disqualification' can be exercised by enacting law. Admittedly under the Scheme of the Constitution Act law can be enacted either by the Assembly or when it is not in session through the promulgation of an Ordinance by the President, if he is satisfied that circumstances exist which render it necessary to take immediate action in this behalf. In our view the 'qualifications' provided under subsection (1) and 'disqualifications' provided in subsection (2) of section 24 of the Constitution Act and by enacting law under the authority C of sub-clause (f) of subsection (2) of section 24 are two shades of the same picture. These are so interchained to each other that both of them must be read together and not in isolation to each other. Therefore, a person who fulfils the requirement of 'qualifications' laid down under subsection (1) of section 24 of the Constitution Act and also does not suffer from any of the "disqualification" laid down under the Constitution Act and law enacted in exercise of the powers under sub-clause (f) of subsection (2) of section 24 can contest election for the legislative body of this part of the State.
12. The next objection raised by Mr. Abdul Majeed Mallick, the learned counsel for the appellants, against the impugned legislation was that the same was ultra vires of the Constitution for being violative of the Fundamental Right No,7 which postulates that every State Subject has a right to form an Association or a Union subject to any reasonable restrictions imposed by law in the interest of morality or public order and that no person or political party in Azad Jammu and Kashmir shall propagate against or take part in activities prejudicial or detrimental to the ideology of State's accession to Pakistan. According to him the right to form an association under this Fundamental Right includes in it to contest election to the Legislative Assembly of Azad Jammu and Kashmir and for that purpose it is the exclusive right of the political party whose activities are not prejudicial or detrimental to the ideology of the State's accession to Pakistan to select and put up its candidates to the Election of the Legislative Assembly. By the promulgation of the impugned Ordinance the Government has practically snatched and curtailed the right of State Subject in above narrated sense to form an association. While elaborating his point of view he further argued that the right guaranteed to the people of the State ,to form an association can be curtained through reasonable restrictions imposed by law in the interest of morality or public order.
According to him the impugned legislation has not been issued in the interest of morality or public order, therefore, the same is liable to be quashed. According to him the right to contest elections is an important ingredient of the Fundamental Right No,7.
13. He placed reliance upon Jammu and Kashmir Tehrik-e-Ammal Party v. The Azad State of Jammu and Kashmir PLD 1985 Azad J&K 95. The facts of this case were that like some other political parties, Jammu and Kashmir Tehrik-Ammal Party and Azad Jammu and Kashmir Muslim Conference were political parties of this part of the State which were registered under the provisions of the Azad Jammu and Kashmir Political Parties Ordinance, 1985. In this law subsequently through an Ordinance, an amendment was made and new subsection 8(A) was added and the same provision was also added as clause (xii) in subsection (2) of section 5 of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970. These provisions were as follows:-- "8(A). The registration of a political party shall be cancelled by the Commissioner, if the number of votes secured by it throughout Azad Jammu and Kashmir and Pakistan at a general election to the Assembly is less than twelve and half per cent. Of the aggregate of the valid votes cast at the said election and less than five per cent. Of the aggregate of valid votes cast in each district."
' Section 5(2)(xii). He is elected as nominee of a political party whose registration has been cancelled by the Commissioner as a result of operation of section 8(A) of Azad Jammu and Kashmir Political Parties (Amendment) Ordinance, 1985."
14. These provisions were challenged in the High Court by Jammu and Kashmir Tehrik-e-Ammal Party through a writ petition mainly on the ground that the same were ultra vires of the Constitution for being violative of the Fundamental Right to form an association guaranteed to a State Subject by section 4(4) of the Constitution Act and that the Fundamental Right of freedom of an association can only be taken away or abridged by imposing reasonable restrictions under law in the interest of morality or public order but the impugned provisions are not reliable to and have no proximity with the public order or morality. Ultimately in terms of majority view, section 8(A) of the Azad Jammu and Kashmir Political Parties Amendment Ordinance, 1985 was declared invalid and void on the ground of being violative of the Fundamental Right of freedom of association guaranteed under the Constitution Act.
15. He also relied another case titled Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain PLD 1995 Lah.
541. In this case it is laid down as follows:-- "42. The question as to whether 'qualification' would include 'disqualification' has been subject- matter of various cases, some of. Which have taken the view advocated by Mr. Muhammad Akram Sheikh. The preponderance of opinion, however, appears to be that want of 'qualification' and 'disqualification' are not interchangeable expressions and a person not possessing requisite 'qualifications' cannot be said to be disqualified. The distinction appears to be that a person is said to be not qualified when he lacks necessary attributes. He is, however, disqualified when he is divested of any of the qualifications."
' This authority has got nothing common with the facts of the present case. In this authority the reliance has been placed on another case titled Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527, in order to support his contention that his clients being qualified to contest election for the Membership of the Legislative Assembly having their age above 25 years and being State Subjects and entered as voters in the electoral roll of their constituencies have been deprived of contesting elections on the ground that they were not matriculate. Such a 'disqualification' endorsed through an Ordinance, according to the learned counsel for the appellants, amounts to the subversion of the Constitution Act because in fact it is a "qualification" which has been enforced in the style of "disqualification" through the impugned legislation.
16. As against these sqbmissions it was argued by Kh. Attaullah, the learned Additional Advocate- General, that the impugned legislation was within the legislative competence of the President of Azad. Jammu And Kashmir and further that it does not contravene the Fundamental Right No,7.
According to them the right of freedom of association does not include the right to contest elections. Mr. M. Tabssum Aftab Alavi, the learned counsel for the respondents, argued that law is to be read as it is and not as it should be. He in support of his contention relied on an authority of this Court titled Azad Government v. Genuine Rights Commission 1999 MLD 268 wherein the proposition of law has been clearly laid down in the following words:-- "..... The Courts of law are bound to interpret a law as it is and not as it should be..." ' and further that:-- "If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words, themselves in such case best declaring the intention of the Legislature."
17. A vires of the impugned legislation is challenged in the light of the Fundamental Right No,7, therefore, it appears appropriate for the sake of reference to reproduce Fundamental Right No,7 of the Constitution Act:- "7. Freedom of association.--- (1) Subject to this Act, every State Subject shall have the right to form Association or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order.
(2) No person or political party in Azad .Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to the ideology of the State's accession to Pakistan."
18. From the perusal of Fundamental Right No,7 it would appear that every State Subject has been given right to form an association of his choice. Such association would continue unless its activities are curtailed through reasonable restriction imposed by law in the interest of morality and public order. The argument that right to form an association automatically confers a right to contest elections for Legislative Assembly cannot be accepted. In case titled Chief Secretary/Referring Authority, I Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayum Khan PLD 1983 SC (AJ&K) 95, the learned Chief Justice of the time in his separate note opined in para. 65 at page 129 as under:- "................. But on the other hand if the Ordinance provides disqualification which is a mere domestic wall to bar entry in the elective body it would not come within the mischief of fundamental rights."
19. Through the present Ordinance only the entry of such persons in the legislative body has been made possible who are either matriculate or have equivalent qualification. Such restriction in the light of the above-referred observations would not come within the mischief of Fundamental Right No,7.
20. The learned counsel for the appellant is the author of the main judgment in Tehrik-e-Ammal case which he has relied in support of his contention that to contest election is a Fundamental Right and any restriction imposed through law to contest election shall amount to an infringement of Fundamental Right No,7. We fail to understand how this authority helps him. This authority he has himself opined in para. 27 at page 134 as under:- ".... Mr. Oayyum Malik rightly pointed out that to contest election is not a fundamental right and to impose a disqualification restricting the right to contest election is not an infringement of a fundamental right " (Underlining is ours).
' Again in the same authority the other member of the Bench, Sardar Muhammad Ashraf Khan, J. In paras. 21 and 22 at pages 151 and 152 laid down as under:-- "21. As would appear from the perusal of the provision relating to the freedom of association, every State Subject has been given right to form Association which right, of course, would also include the right to its continuance unless the same is taken away or abridged by the imposition of reasonable restrictions in the interest of morality and public order by the Legislature. This fundamental right to form an association, in my view, cannot be stretched to such an extent as to include in its ambit even the right of association formed in pursuant thereto for political purposes to contest election to the Assembly and for that purpose nominates and put up its candidates for election to the seats of the said Assembly. To impute such an intention and meaning to the language or context of the fundamental right of freedom of association would be going too far and can only be done by ignoring and not ache ring to well-known and established canons of interpretation and construction of a statute that the meaning and intention of the Legislature should be ascertained from the language of the statute itself and the words used in the statute or Constitution should be construed in their ordinary dictionary meaning, if no ambiguity arose in doing so.
22. It is, of course, true as contended by the learned counsel for the petitioners that the provisions of the Constitution should not be interpreted in a narrow and pedestal sense but in a broad and liberal spirit but, in my view, this does not mean that the Court should be free to stretch or pervert the language of an enactment in the interest of any legal or Constitutional theory. When the provisions of the fundamental right of freedom of association are considered in the light of principle of interpretation of statute I find myself unable to agree with the contentions of the learned counsel for the petitioners that the aforesaid fundamental right also carried with it the right of a political party to participate in an election of the members of the Assembly."
21. As we all know the right to participate in election has been made available to the State Subjects by a statute and not under any Fundamental Right conferred by the Constitution Act. The Constitution has authorized the Legislature to enact the law relating to the elections of the Legislative Assembly. The legislative powers can be exercised either by the Assembly or under section 41 of the Constitution Act by the President. The Ordinance promulgated by the President has the same force and effect as an Act of the Assembly. The President in the present case has competently promulgated the under-challenge Ordinance, therefore, it cannot be said that it lacks legal competence. Therefore, in the light of the above discussion, the arguments of the learned counsel for the appellant is misconceived that the impugned legislation is opposed to Fundamental Right No,7.
22. The next objection raised by the learned counsel for the appellants that the impugned Ordinance is against the Fundamental Right No,15 is also misconceived. He has built up his arguments on the ground that the impugned Ordinance is the result of malice on the part of the sitting Government. According to him in order to secure success in the ' election, law has been enacted in such a manner that a "qualification" has been inserted in law as "disqualification" to pave the way for the success of its candidates. According to him his clients in past remained Members of the Legislative Body and played very effective role. Up to the date when the impugned legislation was enforced they were eligible to contest election for the Legislative Body. Through the impugned legislation the condition of being a matriculate or having equivalent "qualifications" for contesting the election of the Legislative Assembly, a discrimination has been created among the State Subjects and practically the doors of the Legislative Assembly have been closed for those who are not matriculate or have equivalent qualification.
23. While meeting this objection, Khawaja Attaullah, the learned. Additional Advocate-General and Mr. M. Tabassum Aftab Alavi, Advocate, argued that the impugned Ordinance does not militate against the provisions of the Constitution Act. According to them the "qualification" provided through under challenged Ordinance shall apply to all the State Subjects and not to the Members of any particular political party. According to them after 53 years of the independence, the Government has rightly laid down at least matric "qualification" for those who wanted to participate in the elections for Legislative. Body of the State.
24. As has been discussed by us, in the light of the citation of this Court, the condition of being a matriculate or having equivalent "qualification" has been inserted in the list of "disqualification". The law has been enacted under sub-clause (f) of subsection (2) of section 24 of the Constitution Act which empowers the Legislature to provide "disqualification" and not "qualifications". Therefore, we are unable to agree with the learned counsel for the appellant that in fact a "qualification" has been provided in the style of "disqualification". In the same way we are unable to agree with the learned counsel for the appellants that the President has suddenly promulgated the Ordinance under-challenge without providing time to his clients to improve their qualifications. The President can promulgate an Ordinance at any time. It is the prerogative of the President to select the time.
No hard and fast rule can be laid down by the Courts in this regard. The only restriction imposed under the Constitution Act-is that he cannot exercise this power, when Assembly is in session as during such period it can exercise its legislative powers. It is not the claim of the appellants that the Ordinance was promulgated by the President when the Assembly was also holding its session. On account of this reason the President was legally competent to promulgate an Ordinance and mere announcement of the schedule of the election by the Chief Election Commissioner does not affect the validity of the under-challenge Ordinance. The learned counsel for the respondents have referred number of authorities in support of this contention that President can promulgate an Ordinance at any time. These authorities need not be discussed in this judgment as this Court in case titled Raja Muhammad Niaz Khan, Ex-Chairman, Azad Jammu and Kashmir Mineral and Industrial Development Corporation v. Azad Government of the State of Jammu and Kashmir, Muzaffarabad PLD G 1988 SC (AJ&K) 53, which we shall discuss in the coming part of this judgment, has held that the President can promulgate an Ordinance at any time. This argument of the learned counsel for the appellants is, therefore, without force. The second part of his objection that the impugned Ordinance has resulted in discrimination among the State Subjects is also misconceived. It is an admitted position of law that no law can be made against the provisions of the Constitution Act and further that if any law is unreasonable and it offends against any of the Fundamental Rights the same can be struck down. But in the present case no discrimination appears to have been made between the State Subjects. The "disqualification" added through impugned legislation shall apply to all the State Subjects, therefore, the arguments of the learned counsel for the appellants has got no force in it.
25. The other objection of the learned counsel for the appellants was that the legislation of the impugned Ordinance is the result of malice. According to the learned counsel for the appellants in 1996 the present Prime Minister who was also President of People's Party invited his client Ch. Muhammad Yousaf to change his political affiliation but he refused to join his party. Later on Muslim Conference on account of certain political differences was divided into two groups but due to the efforts made by his client ultimately these two groups once again got united. The Prime Minister was, therefore, annoyed with him. He in order to eliminate him from becoming member of the Legislative Assembly maliciously advised the President to promulgate the impugned Ordinance. This Ordinance, therefore, is motivated with malice and for this reason cannot sustain.
According to the learned counsel his clients always have played very effective role. As Members of the Legislative Body in past, therefore, there was no justification to include the condition of matriculation for contesting the elections. According. To the learned counsel the impugned Ordinance was promulgated to pave way for the success of candidates of. Government choice. He further argued that on account of this mala fide legislation even voters who in past had always deposed confidence in his clients have been deprived to elect them as their representative as they are still their choice for their representation in the Legislative Assembly.
26. The learned counsel for the respondents denied this allegation that the impugned Ordinance is maliciously motivated just to exclude the appellants from the field of elections. According to them malice cannot be attributed to the Legislature and no law can be struck down on this ground. They in support of their arguments referred number of authorities, however, only two authorities are referred in this judgment. In case titled Raja Muhammad Niaz Khan, Ex-Chairman, Azad Jammu and Kashmir Mineral and Industrial Development Corporation v. Azad Goverrinent of the State of Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53, it is laid down as follows:-- "In view of the wording of section 41 of the Constitution Act, we are even of the view that even where the session of the Legislative Assembly is prorogued deliberately with a view to enabling the President to promulgate the Ordinance, it is a valid act of the President and this exercise of the powers of the President cannot be called fraudulent or mala tide because under the Constitution Act it is within the powers of the President to prorogue the Legislature at any time he pleases. There is, therefore, nothing wrong in the President's proroguing the Assembly with a view to enable him to issue an Ordinance under section 41 of the Constitution Act. The reason seems to be this: The Legislature, which is democratically constituted is, at times, slow to move in the matter of legislation, having regard to the rules of procedure laid down in that behalf, and if urgent action is necessary at any rate, the President, after having the advice of the Prime Minister, if he has reasons to believe that immediate action is necessary, may resort to the power of issuing an Ordinance under section 41 of the Constitution Act; rather than approach the Legislature for the necessary legislation. A case reported as Re: K. Veerabhadrayya AIR 1950 Mad. 243, is an authority on the.
Point.
' It would be thus manifest that the President cannot only re-enact an Ordinance but can even prorogue the sessions of the Assembly for the purpose."
27. They also placed reliance upon Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457 wherein it is laid down that in order to prove Legislature mala tide the party alleging the same must prove it through some evidence before expecting adverse presumption against such legislation otherwise the presumption would be in favour of bona fide intention of the Legislature.
28. We fully endorse the view expressed in the above-referred cases that malice cannot be attributed to the Legislature without any strong proof. Under the Scheme of the Constitution Act law can be enacted either by the Assembly or by the President in exercise of the powers available to him under section 41 of the Constitution Act. The Ordinance promulgated by the President, therefore, has got the same force and effect as that of the Act of the Assembly. The presumption that law is made with bona fide reasons shall, therefore, apply also to such law which is enforced by the President through an Ordinance. The argument of the learned counsel for the appellants that the impugned Ordinance has been enacted with mala fide intention cannot be entertained in the absence of any evidence in support of such allegation.
29. The last argument of the learned counsel for the appellants was that under sub-clause (c) of section 22(1) of the Constitution Act one member of the Legislative Assembly has to be ain Aalam- e-Din. According to him in the same section a "qualification" has been prescribed for such Member that he must be well versed with the teachings of Islam whereas under the impugned legislation an additional "qualification" has been prescribed for him that he must be also matriculate or have equivalent "qualification" .
30. This point was rightly met by Khawaja Attaullah, the learned Additional Advocate-General, that in the impugned Ordinance the condition of being a matriculate or having equivalent "qualification" has been provided as 'disqualification", therefore, the same cannot be read as additional "qualification" for an Aalam-e-Din. According to him both these conditions that an Aalam-e-Din must be well-versed with the teachings of Islam and also a matriculate can coexist.
31. We have considered the respective submissions of the learned counsel for the parties. The "qualification" provided under section 22(1) (c) of the Constitution Act for an Aalam-e-Din, and the condition of being a matriculate or having equivalent "qualifications" for contesting the election to the Azad Jammu and Kashmir Legislative Assembly as incorporated in the list of "disqualification" can co-exist in one person. The wisdom of the Legislature, therefore, cannot be challenged.
' In view of these reasons, without passing any order as to costs, these appeals were dismissed by us on 7-6-2001 through a short order.