MUHAMMAD YUNUS SURAKHVI, J.--This petition for leave to appeal has been directed against an interim order passed by the High Court on 7-12-2001 in a Writ Petition No,622 of 2001 for setting aside the order to the extent of stopping the release of the contents of the writ petition to the Press and refusing the supplying of attested copies of writ petition and the impugned order to the petitioner.
2. The necessary facts, giving rise to the present petition for leave to appeal, are that a writ of quo warranto was filed by the petitioner herein before the High Court of Azad Jammu and Kashmir on 7-12-2001 and preliminary arguments were addressed before the learned Chief Justice of the said Court on the same date. The learned Chief Justice, according to the petitioner after hearing the preliminary arguments of the petitioner in view of the importance of the case felt pleased to constitute larger Bench comprising of the learned Chief Justice himself, Mr. Justice Ch.Muhammad Taj and Mr. Justice Riaz Akhter Chaudhry for hearing and disposal of the writ petition. The learned Chief Justice also posted the application for interim relief, tiled by the petitioner, to be considered by the aforesaid Bench of the High Court. The learned Chief Justice after constituting the Bench for hearing of the case, accordingly, to the petitioner, however, travelled beyond his jurisdiction vested in him under the Azad Jammu and Kashmir Interim Constitution Act. 1974(hereinafter to be referred as the Constitution) and the Code of Civil Procedure applicable to hearing of writ petitions as well as the High Court Procedure Rules, 1984 to elaborate the dictation of order dated 7-12-2001 which reads as under:-- "I have heard the petitioner in person. The case shall be placed before Full Bench consisting of myself and my learned brothers Mr. Justice Ch. Muhammad Taj and Mr. Justice Riaz Akhter Chaudhry on 8th of January, 2002. The petitioner has filed an application for interim relief that the respondent should be restrained from functioning as Chairman Ehtesab Bureau. This point shall also be considered by the Full Bench.The contents of the petition shall not be issued to Press nor reported till it is placed before the Full Bench. Muzaffarabad. Chief Justice December 7, 2001."
(Underlining is ours). The petitioner alleged that he duly applied for supply of copy of writ petition as well as the copy of order dated 7-12-2001 but the same stood refused to be granted and issued to the petitioner which is apparent from Annexure "PB" appended with the petition for leave to appeal wherein the attested copies of writ petition and interim order dated 7-12-2001 were demanded by the petitioner on payment of costs by submitting an application before the Registrar of the High Court on 7-12-2001.
On this application there is a note of the Copying Clerk dated 10-12-2001 to the effect that the learned Chief Justice has issued directions not to supply the copies of the aforesaid orders, therefore, it was not possible for him to issue the requisite copies. The Deputy Registrar in view of the note of the Copying Clerk returned the original application to the petitioner. The petitioner has challenged the act of the High Court in not supplying the attested copies of writ petition and the interim order dated 7-12-2001 to the extent indicated in the petition for leave to appeal.
3. In the writ petition filed by the petitioner, the petitioner has raised the following amongst other points:--
(i) That respondent No,1 Mr. Justice (Rtd.) Basharat Ahmad Shaikh, during the period he was Judge of the Supreme Court was appointed as Chairman, Ehtesab Bureau of Azad Jammu and Kashmir whereas he was not eligible to hold any other office of profit while functioning as Judge of the Supreme Court. The petitioner referred to Notification, dated 1st September, 2000 and a subsequent notification dated 4th January, 2001, whereby the terms and conditions of Chairman, Ehtesab Bureau were fixed. The Ehtesab Bureau Act was promulgated in Azad Jammu and Kashmir on 13-1- 2001 and the same was published in the Extraordinary Gazette on 15-1-2001. Under the Ehtesab Bureau Act no new notification of respondent No,1 was issued, as such in January, 2001 the appointment of respondent No,1 as Chairman, Ehtesab Bureau came to an end. Thus, all the actions taken and facilities enjoyed by the respondent and his other staff members and cases registered and investigated are violative of law and ultra vires of the Constitution and his all actions fall within the purview of continuous wrong and the respondent is holding illegally the office of Chairman, Ehtesab Bureau. In section 48 of the Ehtesab Bureau Act as there is no saving clause, therefore, the Ehtesab Bureau Ordinance having been repealed by coming into force of the Ehtesab Bureau Act, the notification of appointment of respondent No,1 as Chairman, Ehtesab Bureau under the Act was an essential prerequisite;
(ii) that vide Notification No,S&GAD/MS-3(8)/2001, dated 8-10-2001 the respondent was appointed as Acting Ombudsman and he duly took charge of the said office on 9-10-2001. Under section 5 of the Mohtasib Act, the respondent was not eligible to hold any office of profit to act as Chairman, Ehtesab Bureau: and
(iii) that under section 43(8) of the Constitution a Judge of the High Court cannot hold any office of profit within a period of two years except the office of Chief Election Commissioner and the Chairman, Public Service Commission although in the said section of the Constitution nothing has been mentioned with regard to Judges of the Supreme Court. However, Schedule (IV) of the Constitution read with section 42(9) explicitly lay down that "The Chief Justice and the Judges of the Supreme Court of Azad Jammu and Kashmir shall be entitled to the same salary, allowances, privileges and pension as are admissible to the Chief Justice and the Judges of the Supreme Court of Pakistan". Similarly Schedule (V) of the Constitution states that "The Chief Justice and the Judges of the High Court of Azad Jammu and Kashmir shall be entitled to the same salary, allowances, privileges and pension as are admissible to the Chief Justice and Judges of the High Court in Pakistan". Thus the disqualification which applies to the Judge of the High Court equally applies to the Judge of the Supreme Court to be appointed on any office of profit within a period of two years from the date of his retirement. Inparas. Nos. 4, 5 and 6 of his writ petition, the petitioner has raised various other grounds for issuing a writ of quo warranto against respondent No,1. The allegations made in all the paras. Of the writ petition filed by the petitioner and the grounds taken by him yet remain to be decided by the High Court and at this stage we cannot substitute our own view for that of the High Court but leaving aside the allegations made in para. No,4 of his writ petition there are other substantial grounds of vital legal importance to be attended to in the first instance by the High Court.
4. At the present moment we are only concerned with two points on which the leave has been sought by the petitioner:--
(i) Whether the High Court was vested with any jurisdiction to pass an order dated 7-12-2001 to the extent that the contents of the petition shall not be issued to Press nor reported till it is placed before the Full Bench? And
(ii) Whether the High Court was justified in refusing to supply the copies of writ petition as well as the interim order demanded by the petitioner on payment of costs?
5. In support of petition for leave to appeal it was vehemently contended by the petitioner, who is an Advocate of the Supreme Court, that by imposing ban upon issuing the contents of writ: petition or publishing the same in the Press, the High Court committed an illegality and the same is against Fundamental Right No,9 enshrined in section 4 of the Constitution which provides that "Every State Subject shall have the right of freedom of speech and expression, subject to any reasonable restrictions imposed by law in the interest of the security of Azad Jammu and Kashmir, friendly relations with Pakistan, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence. The petitioner contended that under Fundamental Right No,15 enshrined in section 4 of the Constitution all State Subjects, are equal before law and are entitled to equal protection of law. He, therefore, submitted that the subject-matter of writ petition neither involved national security of the country nor it offends against friendly relations with Pakistan nor any public order, decency or morality. The contents of the writ petition, according to the petitioner, do not amount to contempt of Court, defamation or incitement of an offence. On the other hand his contention is that as far as possible he has tried to use a moderate and decent language by drafting his writ petition. However, he contended that he cannot be deprived of raising any of the grounds which, according to him, are of vital legal importance needing resolution by the Court. The petitioner further contended that refusal of supplying the attested copies of writ petition and interim order dated 7-12-2001 on the part of the High Court is violative of provisions of rules 132 to 134 of the High Court Procedure Rules, 1984. The same are reproduced below for proper appraisal of the controversy in dispute:-- "132. Copies of judicial record may be issued in accordance with these rules to any person who is legally entitled to obtain the same.
133. A plaintiff or a defendant may at any stage of the suit or appeal obtain a copy of the record of the suit or appeal including exhibits which have been put in and finally accepted by the Court in evidence on payment of fees prescribed by these rules.
134(1).A stranger to the suit or an appeal may after decree obtain on payment of fees prescribed in these rules copies of the plaint, memorandum of appeal, written statement, affidavits, any petitions filed in the suit or appeal and may for sufficient reason shown to the satisfaction of Registrar obtain copies of any such documents before decree. He may also obtain on payment of prescribed fee a copy of any judgment, decree or order at any time after it has been passed or made.
The perusal of the aforesaid rules shows it beyond any manner of doubt that the copies of judicial record may be issued in accordance with the rules to any person who is legally entitled to obtain the same. Suffice it to point out that the petitioner falls in the category of persons who are legally entitled to obtain the requisite copies of judicial record. Under rule 134 of the High Court Procedure Rules even a stranger to the proceedings may for sufficient reason shown to the satisfaction of the Registrar obtain copies of any such document before decree. It is further provided in the said rule that he may also obtain on payment of prescribed fees a copy of any judgment, decree or order at any time after it has been passed or made. The petitioner also submitted with vehemence that under Order XIII, rule 3 of the Supreme Court Rules, for lodging a petition for leave to appeal before this Court, alongwith the memorandum of appeal the filing of copy of order appealed from together with the contents of application/writ petition are necessary requirements and if the same are not filed, the appeal before the Supreme Court becomes incompetent and is liable to be dismissed on this sole ground. The petitioner also contended that the High Court did not observe in its impugned order dated 7-12-2001 that the material contained in the writ petition or the contents of the writ petition were against the interest of security of Azad Jammu and Kashmir or against the friendly relations with Pakistan, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence, as such without coming to the aforesaid conclusion in the first instance the ban on the disclosure of the contents of writ petition to the Press or to any one else was an act violative of Fundamental Right No,9 enshrined in section 4 of the Constitution, as such is ultra vires of the Constitution. The petitioner also contended that both the documents, i,e, the writ petition and the interim order recorded by the High Court on 7-12-2001, are public documents, therefore, the copies of the same cannot be refused to be supplied to the petitioner. He placed reliance on Allah Ditta and others v. Sher Ahmed Khan and others 1993 SCR 325,wherein it is provided that Order XIII, rule 3 of the Supreme Court Rules is a mandatory rule and if the compliance of the same is not done, the appeal before the Supreme Court on this sole ground becomes incompetent. He also relied on Government of Pakistan v. Tariq Hussain Farooqi and 3 others PLD 1984 SC (AJ&K)
47. The petitioner craved the leave to appeal on the aforesaid points.
6. Before hearing the petition for leave to appeal and the application for issuing interim relief, we also issued notices to respondents Nos. 1, 2 and 4 to file their objections/caveat, if they so desire.
Respondents Nos.2 and 4 are absent despite service. The office shall proceed against them ex parte. However, respondent No,1 has filed his caveat/objections, wherein it has been alleged that the petitioner was proceeded against under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules and was dismissed from service. However, he filed a writ petition which was accepted by the High Court and he was ordered to be reinstated. The Supreme Court granted leave to appeal to Azad Government and other functionaries. Respondent No,1, at the relevant time, was the Judge of the Supreme Court and was a Member of the Bench who heard the appeal. When the appeal came up for hearing, there was a difference of opinion. The answering respondent upheld the dismissal of petitioner and ordered the dismissal of writ petition filed by the present petitioner. This is a reason for the petitioner's one-sided animus against respondent No,l. It is further stated that a few months later, one Fawad Fayyaz, a cousin of the petitioner, filed an application in Ehtesab Bureau in which he levelled some allegations against the petitioner which were cognizable under the Azad Jammu and Kashmir Ehtesab Bureau Act. Respondent No,1 in his capacity as Chairman, Ehtesab Bureau ordered a preliminary inquiry. This seems to have added fuel to fire. It is further disclosed that an application for bail before arrest was moved by the petitioner which was dismissed on 30th June, 2001. The application was rejected on the ground that the petitioner was not wanted by the Ehtesab Bureau at that stage. The petitioner then filed a time barred petition for leave to appeal in the Supreme Court which was dismissed on 13-9-2001. In the aforesaid petition for leave to appeal the petitioner levelled unfounded allegations causing aspersions on religious belief of respondent No,
1. The learned Judge seized with the case observed in his order that the language employed by the petitioner was scandalous, abusive and highly objectionable". The learned Judge was pleased to take notice of this language whereupon the petitioner tendered apology and undertook to be careful in future. It is also stated in the objections that the petitioner has now filed a writ of quo warranto against respondent No,1 and he has repeated the same thing, therefore. The High Court was pleased to pass. The order challenged before this Court. According to respondent No,1 the order passed by the High Court suffers from no legal defect and the same is in fact in continuation of order of this Court wherein the learned Judge of this Court observed that the language employed by the petitioner in the petition for leave to appeal was scandalous, abusive and highly objectionable.
7. So far as the objection raised by respondent No,1 is concerned that in the previous petition for leave to appeal filed by the petitioner a Judge of this Court observed that the language employed by the petitioner in the petition for leave to appeal was scandalous, abusive and highly objectionable and now the present writ of quo warranto filed by him is continuation of that petition is left open to be decided by the High Court in the first instance. At the time of petition for leave to appeal regarding a bail matter discussing the religious belief of respondent No,1 in detail was irrelevant for the purpose of pre-arrest bail, as such the adverse remarks were given in that context but by filing a writ petition, we cannot stop an applicant to raise as many pleas as he wants provided those one way or the other are relevant to the controversy in issue. Therefore at this stage merely for the reason that adverse remarks were recorded against the petitioner in a bail petition, we cannot disallow the petition for leave to appeal as the points raised in the same, in our opinion, are of vital legal importance needing resolution by this Court.
8. We have given our due consideration to the contentions raised by the petitioner as well as the objections filed by respondent No,1 and examined the impugned order passed by the High Court on 7-12-2001 and also the order whereby the copies of writ petition and the interim order were refused to the petitioner. We are, therefore, of the opinion that the points raised by the petitioner are of vital legal importance. Leave is, therefore, granted on the following grounds:--
(i) Whether the High Court was competent under law to impose a ban upon the petitioner for issuing the contents of writ petition to the Press or publication of the same without ordering the trial of the case to be held in camera and without reaching the conclusion that the contents of the writ petition filed by the petitioner were against the security of country, friendly relations with Pakistan, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence? And
(ii) Whether the High Court was justified in refusing to supply the copy of the writ petition as well as the copy of interim order passed on 7-12-2001 demanded by the petitioner on payment of costs? The petitioner is directed to deposit Rs,1,000 as security, failing which the leave granted shall stand rescinded. Office is directed to complete the file and place the same before the learned Chief Justice for proper orders.
9. There is also an application filed by the petitioner seeking interim relief in terms that the impugned order passed by the High Court on 7-12-2001 to the extent of imposing ban on the petitioner that the contents of the petition shall not be issued to the Press nor reported till it is placed before the Full Bench and the order refusing to supply the attested copies of interim order dated 7-12-2001 and the writ petition to the petitioner be suspended till the disposal of appeal supported by his affidavit.
10. It is contended by the petitioner that the High Court was not legally competent for imposing ban upon the petitioner for issuing contents of writ petition to the Press or publication of the same without first ordering the trial of case to be held in camera and without reaching the conclusion that the contents of writ petition filed by the petitioner were against the security of the country, friendly relations with Pakistan, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence. He also contended that the High Court was not justified in refusing to supply the copy of writ petition as well as the copy of interim order passed on 7-12-2001 demanded by the petitioner on payment of costs. The petitioner pressed into service the submission that the imposition of ban on the publication of contents of writ petition being violative of Fundamental Right No,9., enshrined in section 4 of the Constitution and refusal of copies of public documents, i,e, the copy of writ petition and the interim order dated 7-12-2001 being violative of rules 132 to 134 of the High Court Procedure Rules he has a prima facie case and the balance of convenience also tilts in his favour. It is also alleged that if the impugned order of the High Court is not suspended, the petitioner will suffer more loss than respondent No,1 as the contents of writ petition carry no such material which is against the security of the country or friendly relations with Pakistan, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
11. After taking into consideration the overall circumstances of the case, the impugned order passed by the High Court dated 7-12-2001 and the order whereby the attested copies of writ petition and interim order dated 7-12-2001 were refused to the petitioner shall remain suspended to the extent that the contents of the petition shall not be issued to the Press nor reported till it is placed before the Full Bench. Similarly the order refusing to issue the attested copies of the writ petition and interim order dated 7-12-2001 to the petitioner shall also remain suspended till the termination of proceedings before this Court.