GHULAM MUSTAFA MUGHAL, J.-The above captioned petitions are directed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, praying for an order requiring Justice (Retired) Basharat Ahmed Sheikh (respondent No, 1 in writ petition No. 622/2001 filed by Mujahid Hussain Naqvi, and respondent No. 2 in writ petition No. 1/2002 filed by Muhammad Ashraf and others) (hereinafter to be referred as the respondent) to show under what authority of law he is holding or purporting to hold the public office of Chairman Ehtisab Bureau as well as Acting Mohtasib. In writ petition No. 1/2002, a further prayer has been made for quashment of the proceedings pending against the petitioners on the basis of reference made by respondent No. 2 and the inquiry conducted by the officials of Ehtisab Bureau and the trial being held before Ehtisab Court No. 2 Mirpur, for being without jurisdiction.
2. Both the petitions involve common questions of law and facts, hence were heard together and are decided through this single judgment.
3. The facts in Mujahid Hussain Naqvi's case (Writ Petition No. 622/2001), briefly stated, are that the respondent Mr. Basharat Ahmed Sheikh was holding the office of permanent Judge of Suprerme Court of Azad Jammu and Kashmir when he was appointed, in addition to his duties, as Chairman Ehtisab Bureau, by the President of Azad Jammu and Kashmir in exercise of powers conferred on him by Section 6 of the AJ&K Ehtisab Bureau Ordinance 2000, vide notification dated September 1, 2000. Through another notification issued on January 4, 2001, the terms and conditions of his service were determined. Vide notification of October 8, 2001, the President of Azad Jammu and Kashmir was pleased to appoint Mr. Basharat Ahmed Sheikh as Acting Ombudsman of Azad Jammu and Kashmir, in exercise of his powers conferred by Section 7 of the Establishment of the Office of Mohtasib (Ombudsman) Act 1992. The appointment of the respondent Mr. Basharat Ahmed Sheikh as Chairman Ehtisab Bureau and then as Acting Mohtasib, as aforesaid, is challenged on various grounds, in both the petitions, which may be summarised as under: - ,(i) That Mr. Basharat Ahmed Sheikh, the respondent, while holding the office of a permanent Judge of the Supreme Court, was debarred from holding any other office of profit in the service of Azad Jammu and Kashmir, except the office of Chief Election Commissioner or of Chairman or member of Public Service Commission, before the expiration. of two years after ceasing to be a Judge, as the disqualification provided by sub-section (8) of Section 43 of the Azad Jammu and Kashmir_Interim Constitution Act, 1974 for a Judge of the High Court is equally applicable to a Judge of the Supreme Court as the functions of a Judge of the Supreme Court are the same as those of a Judge of the High Court.
(ii) That under Article 207 of the Constitution of Pakistan, a Judge of Supreme Court of Pakistan cannot hold any office of profit for a period of two years after his retirement, therefore, in view of Section 42(9) read with Schedule Fourth of the Interim Constitution Act, the same disqualification applies to a Judge of the Supreme'Court of Azad Jammu and Kashmir; (iii)That the Supreme Court of Azad Jammu and Kashmir was not in existence when the Azad Jammu and Kashmir Interim Constitution Act, 1974 came into force. The provisions relating to Supreme Court were later on inserted in the Constitution through an amendment in 1975, but while making the relevant amendment, Judge of the Supreme Court has been left over in sub-section
(7) of Section 43 by inadvertence or accidental slip;
(iv) That having accepted the office of Acting Mohtasib, the respondent rendered himself disqualified to hold any other office in the service of Azad Jammu and Kashmii including the office of Chairman Ehtisab Bureau, in vie of Section 5 of the Establishment of the Office a Mohtasib Act, 1992;
(v) That the respondent was appointed as Chairman Ehtisab Bureau under the provisions of Azad Jammu and Kashmir Ehtisab Bureau Ordinance 2000 (Ordinance No. XXIII of 2000) promulgated on July 28, 2000. This Ordinance was repealed and another Ordinance No. XLVI of 2000 was enforced on November 27, 2000, which provided no protection to the appointment of the respondent. Azad Jammu and Kashmir Ehtisab Bureau Act 2001 was enforced on January 15, 2001 and even this Act did not provide any protection or continuity to the appointment of the respondent; and
(vi) That the respondent being a non-Muslim, is disqualified to hold any office of Divine origin, like that of Chairman Ehtisab Bureau or Mohtasib, in Azad Jammu and Kashmir where Islam is the State religion and at least 95% population is Muslim and under the Interim Constitution, only a Muslim can be elected to the office of the President or the Prime Minister.
The respondents have controverted the averments made in the writ petition by filing separate written statements. In his preliminary objections, the respondent has submitted that the present writ petition has been actuated by malice and is a counter blast against the respondent for his lawful actions taken against the petitioner by him firstly in his capacity as a Judge of the Supreme Court and subsequently as Chairman Ehtisab Bureau. Explaining the preliminary objections, it is stated that the petitioner being a civil servant was proceeded against under the Azad Jammu and Kashmir Civil servants (Efficiency and Discipline) Rules for forgery, which resulted in his dismissal from service. The petitioner challenged his dismissal and was reinstated by the High Court of Azad Jammu and Kashmir. An appeal against the order of the High Court was filed by the Azad Government of the State of Jammu and Kashmir before the Supreme Court. The respondent at the relevant time was a Judge of the Supreme Court and was a member of the Bench, which heard the appeal. The respondent ordered the dismissal of the writ petition filed by the present writ petitioner, whereas the other learned Judge dissented and ordered dismissal of the appeal filed by the Government. It is further stated that a cousin of the present petitioner filed an application in the Ehtisab Bureau in which he levelled some allegations against the petitioner, which were cognizable under the AJ&K Ehtisab Bureau Act. The respondent in his capacity as Chairman Ehtisab Bureau ordered a preliminary inquiry in the matter. An objection to the maintainability of the writ is also raised on the ground of !aches, stating that the appointment under challenge was made on 1-9- 2000 whereas the petition has been filed in December 2001. The intervening period has not been plausibly explained and in view of the malice of the petitioner coupled with laches, the writ is liable to be dismissed. On merits, the allegations levelled against the respondent of not being a Muslim is also refuted by stating that the respondent is a Muslim as defined.in sub-section (3) of Section .2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is claimed in the written statement that in view of Sections 24 and 30 of the General Clauses Act as well as Section 56-C of AJ&K Interim Constitution Act, 1974, the appointment of the respondent is perfectly legal. The other respondents have supported the written statement of the respondent.
4. The facts as stated in writ petition No. 1/2002 filed by Muhammad Ashraf and others are that the petitioners No. 1 to 3 were elected and designated as Mayors of the Municipal Corporation, petitioner No. 4 was nominated and appointed as Administrator, petitioners 5 to 8 were posted as Estate Officers, petitioner No. 9 was Town Planner and petitioners 10 to 12 were appointed as Overseers of 'Municipal Corporation, Mirpur, at different times prior to enforcement of Azad Jammu and Kashmir Ehtisab Bureau Act, 2001. The respondent constituted inquiry and investigations against the petitioners and made a reference before the Ehtisab Court No. 2 (respondent No. 10) containing the allegations ascribed to the petitioners during their functioning in the aforesaid official positions, under Section, 21 of the Azad Jammu and Kashmir Ehtisab Act, Section 6(5) of Public Office Misconduct Ordinance, 1965, Section 5(2) Prevention of Corruption Act and Section 4 of the Official Misdemeanour Act, 1948. The inquiry 'constituted and investigation directed by the respondent and thereafter submission of reference before the Ehtisab Court No. 2 and therein holding trial of the petitidners is challenged mainly on the grounds that all the actions taken, orders passed and reference made by the respondent are without jurisdiction for the reason that the basic appointment of the respondent as Chairman Ehtisab Bureau is illegal. The reasons stated are the same as have been enumerated above in the grounds of writ petition No. 622/2001 filed by Mujahid Hussain Naqvi, which need not be repeated here. However, further grounds urged in this petition are summarised below: -
(i) That by virtue of Azad Jammu and Kashmir Ehtisab Bureau Act, 2001, Sections 10, 11, 12, 13, 15 and 16 were added as penal liabilities confining to corrupt practices, illegal gratification and punishment in the shape of imprisonment, fine, freezing of property and disqualification to contest elections or to hold public offices. These provisions in the shape of penalty and punishment, were given retrospective effect from January 1985, which was ultra wires the Constitution;
(ii) That it is alleged that the petitioners while acting and performing functions as Mayors, Administrator, Estate Officers, Town Planner and Overseers in the Municipal Corporation Mirpur acted in violation of the Estate Disposal Rules, 1985 and made allotments of plots in Mirpur city.
Thus, a case of criminal liability was constituted and lodged against the petitioners on the ground of violation of the provisions of Ehtisab Act, 2001. The allegations ascribed to the petitioners did not constitute an offence under any law including the provisions of Estate Disposal Rules and Regularisation of Allotment Orders in force at the relevant time. Thus the provisions of Ehtisab Act 2001 were given retrospective effect. These provisions were incorporated to inculpate the petitioners for acts and omissions relating to a period when such acts and omissions were not an offence under law. These provisions were in conflict with and derogatory to the provisions of Section 4(4) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and thus null and void.
The respondents controverted the averments made in the writ petition. As regards the challenge to the appointment of the respondent Mr. Basharat Ahmed Sheikh as Chairman Ehtisab Bureau, almost the same preliminary objections and reply on merit was submitted as in the case of writ petition filed by Mujahid Hussain Naqvi, which need not be repeated. However, a further preliminary objection was raised that the petitioners were challaned in the Ehtisab Court and faced their trial without any objection or protest in the hope that they would be acquitted. They now cannot be allowed to turn round to plead that their trial was without jurisdiction. As regards the further grounds raised in this petition, as stated above, it was submitted that no offence was constituted with retrospective effect. The petitioners were charged with acts which were offences when the same were committed.
5. It may be stated here that the learned Counsel for the petitioners objected to the right of representation of Umar Mahmood Kasuri by submitting that in the writ petitions. Chairman J&K Council has been arrayed as a party whereas the power of attorney has been placed on behalf of the Secretary Jammu and Kashmir-Council. The learned Counsel stated that the written statement has also been filed on behalf of the Secretary J&K Council, which cannot be treated as a validly presented written statement in view of the provisions of the Civil Procedure Code. Mr. Umar Mahmood Kasuri, Advocate, placed on record a gazette notification of the AJ&K Council dated November 26, 1992 whereby the Secretary Kashmir Council is delegated the powers to sign and verify plaint, written statement and other instruments in any suit by or against the AJ&K Council in any Court on behalf of AJ&K Council, its Chairman or any public officer in the service of the Council and to appoint an Advocate on behalf of the Council. The learned Counsel placing reliance on the above notification contended that the written statement filed on behalf of the Council is valid and is liable to be considered for the purpose of adjudication.
6. In view of the notification referred hereinabove, the competency of the Secretary Jammu and Kashmir Council cannot be called in question, therefore, no further deliberation is required on the point.
7. The learned Counsel for the petitioners argued that the appointment of the respondent as Chairman Ehtisab Bureau was made under Ehtisab Bureau Ordinance No. XXIII of 2000 enforced on July 28, 2000. This Ordinance was repealed by Ordinance No.' XLVI of 2000 enforced on November 27, 2000, In the latter Ordinance, `Chairman' has been defined under clause of Section 4 as Chairman appointed under this Ordinance and no protection is provided by Section 44 of the Ordinance to the appointments made or actions taken under. the repealed Ordinance. Therefore, the appointment of the respondent as Chairman Ehtisab Bureau made under Ordinance-No. XXIII of 2000 came to an end with the repeal of the said Ordinance on November 27, 2000 through Ordinance No. XLVI as the latter Ordinance did not provide any protection to the appointments made under the repealed Ordinance. The learned Counsel emphasised that as no saving clause is provided in the repealing Ordinance No. XLVI of 2000 issued on November 27, 2000, therefore, it shall be presumed that the Legislature while repealing the Ordinance No. XXIII did not intend the continuity of its provisions. The learned Counsel referred to Section 44 of the said Ordinance, which provides full protection to the proceedings conducted under the Ehtisab Act, 1997; therefore, the intention of the legislature shall be viewed keeping in view Section 44 of the Ordinance. If the legislature .had intended otherwise, then the saving clause must have been provided in the Ordinance No. XLVI of 2000 and subsequently in the Ehtisab Act of 2001. The learned Counsel further argued that even if it is assumed for the sake of arguments that the appointment of the respondent can be deemed to have validly continued under the subsequent Ordinance, even then on repeal of the Ordinance and enforcement of Azad Jammu and Kashmir Ehtisab Bureau Act (hereinafter to be referred as Ehtisab Act) on January 15, 2001, the appointment of the respondent certainly came to an end as the Ehtisab Act even did not provide any protection or continuity to the appointment of the respondent. The Ehtisab Act defines 'Chairman' as Chairman appointed under this Act, which does not include or protect any appointee under the repealed Ordinance. Thus, according to the learned Counsel, the respondent's appointment has no statutory backing and he is usurping the office of Chairman Ehtisab Bureau without any lawful authority and the said office is liable to be declared vacant.
8. In support of the aforesaid submissions, the learned Advocate referred to and relied upon P.L.J- 2000 S.C.A.J.K-144, 2000 P.S.C-165, 1994 S.C.R-323, 1997 S.C.R-5, 1996 S.C.R-351-356, P.L.J 2000 S.C- A.J.K-50, A.I.R-1959 S.C-648, 1989 S.C.R-1, 192 S.C.R-222, P.L.D-1985 S.0 159, P.L.D 1985-Peshawar-32, 1998 S.C.R-379, 1995 S.C.R-43, P.L.J-1996 S.C-A.J.K-357, P.L.J-1990 S.C-A.J.K-1, 2000-S.C.R-570.
9. Controverting the arguments of the learned Counsel for the petitioners, Ch. Muhammad Ibrahim Zia, the learned counsel for the respondent contended that Ordinance No. XXIII of 2000 was replaced by Ordinance No. XLVI of 2000. The subsequent Ordinance was replaced by the legislature by enacting the Ehtisab Bureau Act. 2001. Sub-section (2) of Section 41 of the Interim Constitution Act, 1974 provides that an Ordinance shall be laid before the Assembly and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period, a resolution disapproving it is passed by the Assembly, upon the passing of that solution. The learned Counsel stressed that the word "repeal" used the aforesaid Section )s of much significance and it could only be interpreted with referee to the provisions of Section 56-C of the Interim Constitution. The learned Counsel further argued that in view of Section 56-C of the AJ&K Interim Constitution Act, 1974 and Sections 6 and 24 read with Section 30 of the General Clauses Act 1877 as adapted in Azad Jammu and Kashmir, no reappointment of Chairman Ehtisab Bureau was necessary. According to the learned Counsel, the rules of statutory recognition will apply and the appointments made as well as actions taken shall be deemed as lawful and in view of Sections 6, 24 and 30 of the General Clauses Act, there is a presumption of continuity attached to all the acts done and appointments made under the repealed Ordinances and non-providing a saving clause in a statute does not affect the appointments made or actions or proceedings taken under the repealed law. The learned Counsel supported his submissions by referring to the following authorities: (1) PLD 1997 Lah 563, (2) 1992. CLC 321, (3) PLD 1958 Lah 82, (4) 1997 MLD 1367, (5) 1996 CLC 1772 (6) PLD 1996 Karachi 240 and (7) PLD 1980 SC (AJK) 53
10. The learned Advocate General and Mr. Umar Mahmood Kasuri, Advocate supported the arguments of Ch. Muhammad Ibrahim Zia, learned Counsel for the respondent.
11. The learned Counsel placed reliance upon A.I.R 1961- Mausoor-7, 2001-S.C.R-464, 272-237, 2000 S.C.R-273, A.I.R-1931.- Kalkata-38, A.I.R-1971 S.C-358, A.I.R-1955 S.C-84, A.I.R-1957- Punjab-Hariana-265,P.L.D-1966-Karachi-1,P. L. D-1961-S.C-42, P. L. D-1967-Lahore-227, P. L. D- 1970-S. C-158, P. L. D-1957-Karachi-387, P.L. D-1965-S.C-236,D-1976.,Lahore-1608.
12. We have considered the arguments of the learned Counsel for the parties as well as the law and the authorities cited at the bar. For proper appreciation of the controversy and ready reference, Section 56-C of the AJ&K Interim Constitution Act and Sections 6, 24 and 30 of the General Clauses Act are reproduced below:- Section 56-C of the Interim Constitution"56-C. Effect of repeal of laws:- Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Act, the repeal shall not, except as otherwise provided in this Act,-
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or any thing duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture ,or punishment incurred in respect of any offence committed against the law; or
(e) affect any' investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed.
Section 6 of General Clauses Act "6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability. penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
Section 24 of the General Clauses Act.
24. Continuation of orders, etc. issued under enactments repealed' and re-enacted. Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation shall, so far as it is not 'inconsistent with the provisions re-enacted, continue- in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, . order, scheme, rule, form or bye-law, made or issued under the provisions so re-enacted and when any Central Act or Regulation, which, by a notification under Section 5 or 5A of the Scheduled District Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section.
Section 30 of the General Clauses Act.
30. Application of Act to Ordinance. In this Act the expression Central Act wherever it occurs, .except in Section 5, and the word ''Act" in clauses (9), (12), (38), (48) and (50) of Section 3 and in Section 25 shall be deemed to include an Ordinance made and promulgated by the President under Section 23 of the Indian Councils Act 1861 or Section 72 of the Government of India Act 1915 or section 42 of the Government of India Act, 1935 or an Ordinance made and promulgated by the President on or after the twenty-third day of March, 1956."
The Ordinance No. XXIII of 2000 was promulgated on 28-72000. Within its life time, it was replaced by Ordinance No. XLVI of 2000. Before the expiry of the subsequent Ordinance, it was laid before the Assembly and finally passed by the Assembly in shape of Ehtisab Bureau Act, 2001. The argument of the learned Counsel for the petitioners that a saving clause is not provided, therefore, the appointment and action of the respondent shall be deemed to have come to an end, is devoid of force. If the contention of the learned Counsel for the petitioner. is accepted, it will create anomalous situation and would be nugatory to the rule of statutory recognition which is that if a statute is repealed and re-enacted in the same or substantially the same terms, the re-enactment neutralizes the previous repeal and the provisions of the repealed Act which are so re-enacted continue in force without interruption. The superior Courts, however, have drawn an exception only where the provisions of the repealing Act are repugnant to the repealed Act and both the statutes cannot be reconciled and made to stand together and in that eventuality deviation from the rule is permitted.. The aforesaid proposition has been considered by various courts of the Subcontinent, In a case titled lssa Yaqub v. State of Mysore (A.I.R-1961- Mysore-7), alike .preposition came under .consideration. The facts of the case were that a sentence awarded to the accused under Section 8(1) of the Foreign Exchange Regulation Act of 1947 was confirmed by the Session Judge South Kanara; an appeal was taken to the High Court on the ground that the Assistant Collector of the Central Excise Customs Preventive who lodged the complaint had not been authorised by the competent authority to file the complaint and therefore, the complaint itself was incompetent. The arguments were based on the fact that no Notification had been , issued by the Government of India or Reserve Bank of India under sub-sections 2 & 3 of Section 23 of the Foreign Exchange Regulations Act were amended. Section 3 of the said Act authorised the Government of India to appoint a Director of Enforcement for the purpose of enforcing the provision of the Foreign Exchange Regulation Act. It was contended that since the Government of India or Reserve Bank has not issued a general or special order empowering the P.W. 1 Sri Prameshwara to file such a complaint and since no Director of Enforcement had been appointed by the Central Government, therefore;, the conviction was unlawful. The learned Court opined as under:- "I am unable to accept the contention of Sri Javali, the learned Counsel for the petitioners, that in the absence of a notification issued subsequent to the amendment of the Act by Act 39 of 1957,. the old notification which empowered P.W. 1 Sri Parameshwara and the other customs officers to lodge complaints became inoperative and that P.W. 1 Sri Parameshwara was not competent to file the complaint. Section 24 of the General Clauses Act provides that where any Central Act or Regulation is repealed and re-enacted with or without modification then unless it is otherwise expressly provided any appointment, notification, order etc., issued under the repealed Act or Regulation shall so far as they are not inconsistent with the provisions re-enacted continue in force and be deemed to have been made or issued under the provisions of the new Act unless and until it is superseded by any appointment, notification etc.. issued under the provisions of the new Act."
The Supreme Court of India also considered the, preposition in the case titled 'State of Punjab v. ,Mohar Singh' reported as A.I.R1955-S.C-84. The facts of the case were that an Ordinance (being Ordinance No. VII of 1948) was promulgated by the Governor of State of Punjab under Section 88 of the Government of India Act, 1935 whereby provisions for registration of land claims were made.
Mohar Singh purporting to be a refugee from the West Pakistan filed a claim in accordance with the provisions of the Ordinance stating therein that he had a land measuring 104 kanals situated within District Mianwali -in West Punjab. On the 1st of April 1948, the aforesaid Ordinance was repealed through Act No. 12 of 1948. The claim filed by the respondent therein was investigated under the provisions of the Ordinance and it was found after inquiry that the claim was absolutely false. Upon this the prosecution was started against him under Section 7 of the Act which made it an offence for any person to submit, with regard to his claim under the Act, any information which is false. The accused was sentenced by Magistrate till the rising of the Court and a fine of Rs.120/-.
The District Magistrate considered the sentence to be inadequate and referred the case to the High Court. While hearing the appeal it was argued that the Magistrate was not competent to convict the accused-appellants at all under the provisions of the Act as the offence was committed against the Ordinance before the Act came into force and the prosecution was started long after the Ordinance had come to an end. The matter was referred to the Division Bench and the learned Judges accepted the appeal. An appeal was preferred before the Supreme Court and the learned Supreme Court of India while accepting the appeal opined as under;- " In our opinion the approach of the High Court to the question is not quite correct. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the Section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.
The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 -of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new . legislation manifests an intention incompatible with or contrary to the provisions of the Section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case."
13. The preposition has also been considered by the Lahore High Court. In the case captioned The State v. Shafi M. Sehwani and another' (P.L.D-1997-Lahore-563), a similar objection was answered in the following manner.
"35. The other legal point namely that the Ordinance CXI of 1996 was repealed without saving the action initiated under the same, therefore, the present trial and all proceedings initiated under Ordinance CXI of 1996 were without any legal basis. The argument clearly lost sight of the provisions of Section 24 of the General Clauses Act, which provided that if any Central Act, after commencement of Amending Ordinance, 1937 is . repealed, re-enacted then, unless otherwise provided, any appointment, notification, order, scheme, rule, form shall continue in force until same are inconsistent with the new enactment. This clearly saved the proceedings under. Ordinance CXI of 1996. The trial is in accordance with law and valid."
The authority cited as 1991 C. LC 321, by the learned Counsel for the respondents also supports his contention that whenever an Act is repealed and re-enacted, a notification under repealed Act is regarded as a notification under the Act in which the provision of the repealed Act are re-enacted.
The fact that the Ordinance or the Act was repealed one after the other would not make any difference as the deeming clause of Section 24 of the General Clauses Act would keep the rules or the notification issued under the repealed Act alive unless it could be shown that under the re- enacted Act, a notification or the rules could not stand on account of inconsistency with the re- enacted provisions.
14. The apex Court of Pakistan also approved the same view in the case titled Federation of Pakistan v. M. Nawaz Khokhar (P.L.D-2000 S.C-26). The relevant observation of the Apex Court is as under:- "Before considering the above contention, it may be stated here that if an Ordinance stands repealed under the Constitution, the consequences of repeal are provided under Article 264 of the Constitution. However, if a law is repealed by a subsequent Act, the consequences flowing from such repeal. are to be determined with reference to the provisions of Section 6 of General Clauses Act. The contention of the learned Counsel for the private appellant is, that. Ordinance XX . while repealing Ordinance CXI, though contained a saving clause, did not provide for continuation of the proceedings pending under Ordinance CXI, which shows that the Legislature did not intend to keep the pending proceedings alive under Ordinance XX. Repeal of Ordinance CXI, by Ordinance XX was not a case of simple repeal but it was a case of simultaneous repeal and re-enactment of a legislation, and therefore, besides consequences mentioned in Section 6 of the General Clauses Act, Section 24 of the General Clauses Act were also attracted. Ordinance XX was a verbatim reproduction of Ordinance CXI. Ordinance CXI, was still in . force when it was repealed by Ordinance XX. It may also be mentioned here that Ordinance XX was finally converted into a permanent legislation when the Legislature passed it as Act IX of 1997. It is, therefore, quite clear to us that although Ordinance CXI, was a temporary legislation but the Legislature intended to provide continuity to its provisions by first repealing it by Ordinance XX and then converting the later into an Act of legislature by passing it as Act IX of 1997. Our above conclusions are supported by the following passage in `Cries on Statute Law (Seventh Edition)' appearing at pages 408 and 409:- "If an Act is in the first instance temporary, and is continued from time to time by subsequent Acts, it is considered as a statute passed in the session when it was first passed, and not as a statute passed in the session in which the Act which continues its operation was passed. This was so held in Shipman v. Hens best, where (inter alia) it had been contended that 21 Jac. 1, 4, S.4 (common informers which enabled a defendant, sued on any penal statute passed before 21 Jac. I, to plead the general issue and to give special matter in evidence under it, did not ,apply to an action brought upon 1 Jac.; c. 22, because that statute, although originally passed. before 21 Jac. 1, was only a temporary Act to continue to the next session of the next Parliament, and that ire the next Parliament-- viz., -6 Jac, 1--it was not Continued, nor was it continued again till after the passing of 21 Jac. I.c.4. But as to this contention, Lord Kenyon said: ,`It has been argued that the 21 Jac. 1, does not extend to. Acts passed subsequent to it, and that this may be considered as an action brought on a subsequent statute; the 1 Jac. 1, c.22, having expired before the 21 Jac. 1, and has been only re- enacted since that time; but on this point I have not entertained a doubt from the beginning. We. are almost clearly of opinion that this must be considered as an action on the 1 Jac. 1, c.22; and that the subsequent laws,. which have continued it from time to time, all give effect to it as an Act made in the first year of James I. This doctrine seems not to have been accepted in R. v. Phipoe, where it was contended that an indictment founded on the temporary Act of 2 Geo. 2, c.25, S.3 (which Act was revived by 9 Geo. 2, c.18) ought to have concluded in the plural number, "against the form of the statutes in such case made and provided"; but it was held otherwise, because it was considered that the re-enacting statute was the only 'statute in force against the offence. This ruling is, however, contrary to the opinion expressed by the Judges in Dingley v. Moor, .where, on a similar point having been raised, it was said that, there ought to be a difference observed when a statute is made to endure for a certain time and is afterwards made perpetual by a new Act or made 'perpetual in part and where it is continued with a new addition; for where a statute is made perpetual in part or in whole without any new addition, the offence may well be supposed against the form of the first statute, for that Act is made to continue.- In these circumstances, in our view, there was a clear intention on the part of the Legislature while promulgating Ordinance XX to provide continuity to the provisions of Ordinance CXI. Therefore, in spite of the fact that Section 28 of the Ordinance XX did not specifically save the proceedings instituted under. Ordinance CXI there was clear intention on the part of the Legislature to keep the proceedings instituted under Ordinance CXI alive under Ordinance XX. We are, accordingly, of the view that the proceedings initiated under . Ordinance CXI could be continued under Ordinance XX after repeal of Ordinance CX1."
A perusal of Section 56-C of the Interim Constitution Act, 1974 as well as Sections 6, 24 and 30 of the General,, Clauses Act reproduced hereinbefore is sufficient answer to the plc position in hand that if an Act or Ordinance was repealed and re-enacted without modification, then all appointments, notifications and orders issued under the repealed law were to continue in force unless they were inconsistent with the subsequently re-enacted provisions or the said appointments were superseded or altered subsequently. The Ehtisab Ordinance No. XXIII of 2000 was issued on 28-7- 2000 and during its life time, it was re-enforced by issuance of 'Ordinance No. XLVI of 2000 dated 17-11-2000. Ordinance No. XLVI of 2000 issued on 17-112000 later become an Act of the Assembly. A perusal of the provisions relating to the appointment of the Chairman Ehtisab Bureau reveals that no substantial change has been 'effected by the subsequent Ordinance or the Act. The appointment of the respondent has also not been superseded by issuance of any other notification nor it offends against the provisions of subsequent legislation, therefore, it cannot be held to be bad in law. The appointment shall be deemed to have been made under the provisions of Ehtisab Bureau Act, 2001.
15. It was next argued by the learned Counsel for the petitioners that the respondent was appointed as Acting Mohtasib under Section 7 of the AJ&K Establishment of the Office of Mohtasib (Ombudsman) Act, 1992 (hereinafter referred to as the Mohtasib Act). The office of Mohtasib is created under Section 3 of the Mohtasib Act. According to the learned Counsel, there is no separate office of Acting Mohtasib and the respondent is a full fledged Mohtasib for the purpose of the aforesaid Act, hence by accepting the appointment. as ,Mohtasib, he has incurred the disqualifications provided under Section 5 of the Mohtasib Act; whereby Mohtasib is debarred from holding any other office of profit in the service of Azad Jammu and Kashmir, and, in this perspective of the matter, the respondent is usurping the office of Chairman Ehtisab Bureau at least from the date of his appointment as Mohtasib.
16.The learned Counsel for the respondent controverting the arguments contended that Acting Mohtasib is not included in the definition of Mohtasib as defined by Section 3 of the Mohtasib Act, 1992, therefore, the disqualifications provided in Section 5 of the Mohtasib Act are not attracted, as the respondent has not been substantively appointed to the post of Mohtasib of Azad Jammu and Kashmir.
17. For resolving the controversy, it will be useful to refer to the relevant provisions of the Establishment of the Office of Mohtasib (Ombudsman) Act, 1992.
Section 3 of the said Act provides the manner of the appointment of Mohtasib whereas in Section 4, the tenure of the Mohtasib is provided. Sections 2, 3, 4, 5 and 7 are relevant which are reproduced to the extent of relevancy as under:- "2. Definitions:: (1)
(2)
(3)
(I)
(ii)
(4). "Mohtasib" means the Mohtasib (Ombudsman) appointed under Section 3.
(5) "Office" means the office of the Mohtasib.
3. Appointment of Mohtasib:- (1) There shall be a Mohtasib (Ombudsman) who shall be appointed by the President.
(2) Before entering upon office, the Mohtasib shall take an oath before the President in the form set out in the first Schedule.
(3) The Mohtasib shall in all matters perform his functions and exercise his powers fairly, honestly, diligently and independently of the Executive and all executive authorities throughout Azad Jammu and Kashmir shall act in aid of the Mohtasib.
4. Tenure of the Mohtasib:- (1) The Mohtasib shall hold office for a period as may be determined by the President not exceeding three years and shall not be eligible for any extension of tenure or for re-appointment as Mohtasib under any circumstances.
(2) The Mohtasib may resign his office by writing under his hand addressed to the President.
5. Mohtasib not to hold any other office of profit, etc:-
(1) The Mohtasib shall not:-
(a) hold any other office of profit in the service of Azad Jammu and Kashmir: or
(b) occupy any other position carrying the right to remuneration for the rendering of services. -- (2)The Mohtasib shall not hold any office of profit in theservice of Azad Jammu and Kashmir before the expiration of two years after he has ceased to hold that office nor shall he be eligible during the tenure of office for a period of two years thereafter for election as a member of legislative Assembly or any local body or take part in any political activity.
7. Acting Mohtasib:- At any time when the. office of Mohtasib is vacant or the Mohtasib is absent or is unable to perform his functions due to any cause, the President shall appoint an acting Mohtasib."
The contention of the learned Counsel is that as defined in sub-sections (4) & (5) of Section 2, the "Mohtasib" means a Mohtasib appointed under Section 3 and "office" means " the office of the Mohtasib" and perusal of the above provisions indicates that there is no concept of Acting Mohtasib. The learned Counsel is of the view that any acting Mohtasib appointed under Section 7, reproduced above, would be deemed to be a Mohtasib appointed under Section 3 of the Mohtasib Act, 1992, therefore, the disqualification provided under Section 5 would be attracted. Keeping in view the joining report of the respondent, according to the learned Counsel, it leaves no-doubt that respondent joined as a Mohtasib, therefore, he is no more a Chairman of the Ehtisab Bureau as the Mohtasib of Azad Jammu and Kashmir cannot hold any other office of profit or occupy any other position carrying the right to remuneration for the rendering of services. After perusing the aforesaid provisions of the Mohtasib Act, we are of the considered view that the argument of the learned Counsel for the petitioners is misconceived. No doubt that sub-sections (4) & (5) refer to a Mohtasib appointed under Section 3. Section 3 reveals that before entering upon office, tyre Mohtasib shall take an oath before the President in the 'form set out in the First Schedule. Similarly the Mohtasib is appointed to perform his functions and exercise his powers fairly, honestly, diligently and independently of the Executive and all executive authorities throughout Azad Jammu and Kashmir are made bound to act in aid of the Mohtasib. Similarly in the preceding Sections, the tenure of the Mohtasib is also fixed. In our view, disqualifications provided by Section 5 are provided for only a Mohtasib appointed under Section 3 of the Act and the Acting Mohtasib appointed under Section 7 is not included in the definition of the Mohtasib for the purpose of disqualification, as Acting Mohtasib has to perform.the functions for a temporary period during which the Mohtesib is absent or unable to perform his functions due to any cause. Keeping in view the aforesaid provisibns, it cannot be held that the apppintment of Acting Mohtasib is also substantive in nature, therefore, by no stretch of imagination, it can be said that disqualifications provided for the Mohtasib are attracted even to a person who is holding the office as Acting Mohtasib. The learned Counsel for the petitioner has not supported his point of view by any precedent. Our aforesaid view finds support from a case titled 'Mr. Zulfikar Ali Bhutto v. The State' ( P.L.D-1978-S.C.40), The facts of the case were that constitution of the Lahore High Court in term of Article 192 of the Constitution was challenged on the ground that permanent Chief Justice-Mr. Aslam Reaz Hussain, was appointed as Acting Governor of the Punjab on 6th July 1977 and relinquished the office of the Chief Justice on 13th of July 1977. Mr. Justice Mushtaq Hussain was appointed as Acting Chief Justice. The contention was raised before the Supreme Court that as Mr. Justice Aslam Reaz Hussain, Chief Justice, was appointed as Governor, the result was that the office of the Chief justice became vacant. The other question which was resolved by the Supreme Court was as to whether the appointment of Acting Chief Justice of Lahore -High Court as Chief Election Commissioner is an appointment in terms of the relevant Article of the Constitution. The Apex Court after survey of the case law, opined as under:- "The contention that the appointment of the Chief Justice as Acting Governor was not justified or necessary is misconceived. This was a measure which could be taken under the ,Constitution, and therefore within the purview of powers available to the Chief Martial Law Administrator. It may also be mentioned that even in the past Chief Justices of High Courts have been appointed Acting Governors in the Provinces of the Punjab, Sind and N.W.F.P.
From what we have said above, it follows that the appointment of Mr. Justice- Mushtaq Hussain as the Chief Election Commissioner is in the nature of a temporary and acihoc appointment in a situation not covered or contemplated by the Constitution of 1973. It is not a permanent and substantive appointment in terms of the Constitution, but is merely intended for the limited purpose of holding the forthcoming general elections, notwithstanding the fact that certain other duties or powers may also have been conferred on him. It is, therefore, not an appointment to which the prohibition contained in Article 216 of the Constitution can be attracted. Accordingly, there is no bar in the Way of the Chief kElection Commissioner continuing to perform his judicial functions as a Judge and Acting Chief Justice of the Lahore High Court."
Similar preposition has been dealt with in a case titled Pakistan Tehrik-e-lnqilab v. Election Commission of Pakistan and two others' ( 1997-M.L.D-3167). The learned judge of the Lahore High Court resolved the following points.
Whether Mr. Muhammad Hanif Ramay was appointed as an Acting Governor under the provisions of Article 104 of the Constitution or whether his appointment was of permanent nature made under Article 101 of the Constitution.
(ii) Whether the Governor appointed under Article 101 and an Acting Governor required to perform functions of the Governor,. under Article 104 are two different legal entities under the Constitution, if so whether the Acting Governor entails consequence under Article 103 of the Constitution on assuming the Office of the Governor.
(iii)Whether the Governor and the Acting Governor are persons in the service of Pakistan and they are disqualified to be elected as members of the Parliament or the Provincial Assemblies under Article 63 of the Constitution, within 2 years of their ceasing to be the Governor or the Acting Governor. "
(iv) Whether a Speaker of a Provincial Assembly when he performs functions of an Acting Governor ceases to remain the Speaker and member of the Assembly.
After discussing the various provisions of the Constitution, the learned Judge opined as under:- "The Governor and the Acting Governor are two different legal entities under the Constitution. A person with the prescribed qualifications can be appointed as Governor by the President of Pakistan after consultation with the Prime Minister under Article 101 of the Constitution when the office of Governor falls vacant, while in the case of Acting Governor, any person can be required to perform the functions of Governor under Article 104 of the Constitution by way of temporary arrangement during his absence or when he is unable to perform his functions as Governor due to any cause. ii. It is only in the case of appointment of a member of the Parliament or a Provincial Assembly as Governor under Article 101 that he ceases to be such member under clause (2) of Article 103 of the Constitution. But in the case of an Acting Governor such a result does not follow. Since Mr. Muhammad Hanif Ramay, the Speaker of the Punjab Assembly was required under Article 104 of the Constitution by the President of Pakistan to perform functions as Acting Governor during the absence of Ch. Muhammad Altaf Hussain from Pakistan and the oath was also administered to him on 5th April, 1995 as Acting Governor, therefore, he did not lose his seat in the Provincial Assembly. It may be relevant to mention here that an Acting ,Governor is not entitled to the remuneration or other privileges etc. to which a Governor is entitled. So much so, that the Acting Governor cannot even use the official residence or the official conveyance of the Governor. iii. A Governor or for that matter an Acting Governor is not included, in the service of Pakistan.
Therefore, it cannot be said that Mr. Muhammad Hanif Ramay became disqualified from being member of the Provincial Assembly oc its Speaker, by .virtue of his assuming the office as Acting Governor of the Punjab Province."
Identical preposition came up for consideration before Karachi High Court in a case titled 'Messrs Pervez Industrial Corporation v. Messrs New Lahore Transport Co. and 3 others' .(P.L.D. 1975Karachi- 88). The learned Judge after discussing the case law and relevant provisions opined as under:- "3. Mr. Niamat Maulvi has thus argued in a circle and his argument is on the face of it fallacious.
Here the case is not of the Governor acting as Chief Justice but the Chief Justice acting as Governor. Under Article 207 (1)(a), the Chief Justice can hold any other office in addition, if his remuneration is not thereby increased. Post of Governor has not been included in "Service of Pakistan", under Article 129. As the Chief Justice continued to hold office as such while acting as Governor. alto he did not cease to be the Chief Justice. Under Article 104 the Chief Justice was not "appointed" as Governor but the President directed him to also "act" as the Governor. So he was not "appointed" to hold "any office of profit in the service of Pakistan:" The Chief Justice did not thus vacate his post as "Chief Justice of Sind & Balauchistan High Court", at any time and necessity of a fresh oath ofAbffice did not therefore arise."
In view of the aforesaid authorities, we are clear in our mind that an Acting Mohtasib does not include the Mohtasib appointed under Section 3 of the Mohtasib Act, 1992.
The learned Counsel for the petitioners next contended that the respondent was disqualified from being appointment as Chairman Ehtisab Bureau while as sitting Judge of the Supreme Court .of Azad Jammu and Kashmir and even within two years of his ceasing o be a Judge in view of the provisions of sub-sections (7), (8) and (9) of Section 43 read with Schedule Fourth and sub-section
(9) of Section 42 and Fifth Scheduie of the AJ&K Interim Constitution Act, 1974 read with Article 207 of the Constitution of Islamic, Republic of Pakistan. Elaborating his arguments, the learned Counsel submitted that the respondent was admittedly holding the office of permanent Judge of the Supreme Court when he was appointed as Chairman Ehtisab Bureau. Sub-section (7) of Section 43 of the AJ&K Interim Constitution Act, 1974 disqualifies a sitting Judge of the High Court of Azad Jammu and Kashmir to hold any office of profit in the service of Azad Jammu and Kashmir if his remuneration is thereby increased or to occupy any other position carrying right to remuneration for rendering of service, etc. Sub-section (8) of Section 43 disqualifies a person who held the office as a Judge of the High Court to hold any office of profit in the Service of Azad Jammu and Kashmir, not being a judicial or quasi judicial office or the office of Chief Election Commissioner or of Chairman or member of the Public Service Commission, before the expiration of two years after he ceased to hold that office. The learned Counsel argued that this disqualification applies equally to the Hon'ble Judges of the Supreme Court for the reason that if a Judge of the High Court is disqualified to hold any other _office on the basis of disqualification provided by sub-sections (7) and (8) of Section. 43, Hon'ble Judges of the Supreme can also not hold any other office in the service of Azad Jammu and Kashmir. The learned Counsel also contended that the aforesaid disqualification is also attracted in view o. sub-section (9): of Section 42 of the Interim Constitution, according to which the remuneration and other terms and conditions of service of a Judge of the Supreme Court shall be as provided in the Fourth Schedule, which postulates that the Chief Justice and Judges of the Supreme Court of Azad Jammu and Kashmir shall be entitled to the same salary, allowances, privilege and pension as are admissible to the Chief Justice and Judges of the Supreme Court of Pakistan. The learned Counsel also made reference to sub-section (9) of Section 43 of the Interim Constitution, according to which the remuneration and other terms and conditions of service of Judge of High Court shall be as provided in the Fifth Schedule, which provides that the Chief Justice and Judges of the High Court shall be entitled to the same salary, allowances, privileges and pension as are admissible to Chief Justices and Judges of High Courts in Pakistan. By referring to the Fourth sand Fifth Schedules, the learned Counsel argued that as the Judges of the High Court and the Supreme Court of Azad Jammu and Kashmir are entitled to the same salary,' allowances, privileges and pension as are admissible to the Judges of the Supreme Court and High Courts in Pakistan, they are also subject to the same disqualifications which are applicable to the Judges of the Supreme Court and High Courts in Pakistan. The learned Counsel further submitted that the provisions of sub-sections (7) and (8) of Section 43 of the Interim Constitution are corresponding to the provisions of Article 207 of the Constitution of Islamic Republic of Pakistan, which place the aforementioned restrictions both on the Judges of the Supreme Court and the High Court alike. Therefore, according to the learned Counsel, the disqualifications applicable to Judges of the Supreme Court of Pakistan are applicable to the Judges of the Supreme Court of Azad Jammu and Kashmir, by analogy, in view of the aforesaid provisions of the AJ&K Interim Constitution and the Constitution of Islamic Republic of Pakistan. The learned Counsel painstakingly argued further that when the Azad Jammu and Kashmir Interim Constitution Act, 1974 was enacted, there was no Supreme Court in Azad Jammu and Kashmir. The Supreme Court was established by amending the Interim Constitution in '1975. Non-inclusion of Judges of the Supreme Court in the relevant Sections of the Interim Constitution relating to the aforesaid disqualifications, while making amendment in the Constitution, according to the learned Counsel, is an accidental slip and it is permissible for the Court to give effect to the true intention of the law maker's by supplying the omission. According to the learned Counsel, such 'an interpretation is -necessary to remove the disparity created by the legislature by not including the Judges of the Supreme Court in the relevant Section of the Constitution relating to- disqualifications. According to the learned Counsel, the respondent being a sitting Judge of the Supreme Court at the relevant time, was disqualified to hold the office of Chairman Ehtisab Bureau of Azad Jammu and Kashmir and even after his retirement as Judge of the Supreme Court, he was not qualified to hold the office of Chairman Ehtisab Bureau within a period of two years of his retirement; he is thus usurping the said office without lawful authority.
18. The learned Counsel for the respondent controverted the arguments by contending that the legislature has wilfully not included the Judges of the Supreme Court for the purpose of disqualifications enumerated in sub-section (7) of Section 43 of the Interim Constitution Act, 1974.
The legislature was fully aware of the situation and the Courts have to presume that the lawmakers did not intend any absurdity and the Courts have no power to fill any gaps disclosed in an Act. No disqualification can be extended by implication or can be read in the Constitution. Similarly, by mere reference of Section 42, sub-section (9) read with Schedules Fourth and Fifth of the Interim Constitution Act, 1974, it cannot be said that the provisions of Article 207 of the Constitution of Islamic Republic of Pakistan are automatically attracted to disqualify the Judges of the Supreme Court of Azad Jammu- and Kashmir from holding any office of profit in the service of Azad Jammu and Kashmir.
19. For resolving the proposition in controversy,it would be useful to reproduce the relevant provisions i.e. sub-section (9) of Section 42, Fourth Schedule and sub-sections (7), (8) and (9) of Section 43 of the AJ&K Interim Constitution Act and Article 207 of the Constitution of Islamic Republic of Pakistan: "
42. Supreme Court of Azad Jammu and Kashmir:-
(9) The remuneration and other terms and conditions of service of a Judge of the Supreme Court of Azad Jammu and Kashmir shall be as provided in the Fourth Schedule.
FOURTH SCHEDULE {See. Section 42 (9)1 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.
43. High 1-A.
(a)
(b)
(c)
(2)
(2-A).
(a)
(b)
(3)
(a)
(b)
(4)
(5)
(6)
(7) A Judge of the High Court shall not,
(a) hold any other office of profit in the service of Azad Jammu and Kashmir if his remuneration is thereby increased, or
(b) occupy any other position carrying the right to remuneration for the rendering of services, but this sub-section shall not be construed as preventing a Judge from holding or managing private property.
(8) A person who has held office as a Judge of the High Court shall not hold any office of profit in the service of Azad Jammu and Kashmir, not being a Judicial or quasi-Judicial office or the office of Chief Election Commissioner or of Chairman or member of the Public Service Commission, before the expiration of two years after he ceased to hold that office.
(9) The remuneration and other terms and conditions of Service of Judge of High Court shall be as provided in the Fifth Schedule.
Article 207 of the Constitution of Islamic Republic of Pakistan "207- Judge not to hold office of profit, etc.---(1) A Judge of the Supreme Court or of a High Court shall not,--
(a) hold any other office of profit in the service of Pakistan if his remuneration is thereby increased; or
(b) occupy any other position carrying the. right to remuneration for the rendering of service.
(2) A person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service _of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissioner or of Chairman or member of a law commission or of Chairman or member of the Council of Islamic Ideology, before the expiration. of two years after he has ceased to hold that office.
(3) A person who has held office as a permanent.Judge,--
(a) of the Supreme Court, shall not plead or act in any Court or before any authority in Pakistan.
(b) of a High Court, shall not plead or act in any Court or before any authprity within its jurisdiction; and
(c) of the High Court of West Pakistan as it existed immediately before the coming into force of the Province of West Pakistan (Dissolution) Order, 1970, shall not plead or act in any Court or before any authority within the jurisdiction of the principal seat of that High Court or, as the case may be, the 'permanent Bench of that High Court to which he was assigned."
The contention of the learned Counsel that under sub-section (7) of Section 43, a Judge of High Court is disqualified from holding any other office of profit in the service of AJ&K, if his remuneration is thereby increased or occupy any other position carrying the right to remuneration for rendering of services. Similarly under sub-section (8) of Section 43 it is provided that a person who has held office as a Judge of High Court shall not hold any office of profit in the service of AJ&K. The disqualification enumerated in sub-section (7) & (8) of Section 43, according to the learned Counsel, are attracted even to the Hon'ble Judges of Supreme Court. To substantiate his contention the learned Counsel submitted that at the time of framing of Interim Constitution Act, 1974, there was no Supreme Court in AJ&K and noninclusjon of the Hon'ble Judges of Supreme Court in the aforesaid Section as has been enshrined in the Constitution of Islamic Republic of Pakistan (Article 207) is an accidental slip, therefore, it is permissible for the Court to give effect to the true intention of the law makers to supply the omission. According to the learned Counsel such an interpretation is necessary to remove the disparity created by the leislature by not including the Judges of the Supreme Court.
20. The learned Advocate is of the view that as the terms and conditions of the Judges of the Supreme court of Pakistan are extended by sub-section (9) of Section 43 read with 4th Schedule, therefore, the provision of Article 207 shall ipso 'facto be applicable to the Judges of Supreme court of AJ&K; and in case of applicability cf the aforesaid provisions the respondent also can not hold the office of Chairman Ehtisab Bureau before the expiration of two years after he ceased to hold office of Judge of Supreme Court as postulated by sub= section (8) of Section 43 of the Interim Constitution Act, 1974. The contention of the other side is-that the legislature was fully aware of the situation and the Courts have to presume that an absurdity was not intended by the law makers and the Courts have no powers to fill any gaps disclosed in an Act.
21. After giving anxious though to the arguments of the learned Counsel, we are of the .view that a reference to the equality in pay and privileges with the superior judiciary of Pakistan can hardly provide a base for extension of the provisions of Article- 207 of the Constitution of Islamic Republic of Pakistan. Effect of the acceptance of the arguments of the learned Counsel for the petitioner would be of amending sub-section (7) of Section 43 of the Interim Constitutions Act, 1974 which is not the job of the Court as, for amendment in the Constitution, a definite procedure is provided by the Constitution itself and the same is the prerogative of the legislature. The superior Courts are unanimous on the point that even though, as a general rule, a Court of law is authorised to a cassus omissus or alter the language of a statute for the purpose of supplying a meaning. the effect of which would be to fill gaps disclosed in an Act. In doing so, the Court would be usurping the functions of the legislature. As the learned Judges of the Supreme Court of AJ&K are not included in the provision referred hereinabove, therefore, we cannot include a disqualification by implication. The aforesaid view lends support from PLD-1982-AJK-82.
22. There is an other aspect of the matter which is of fundamental nature and needs interpretation.
In our view, the embargo placed on the Judges of High Court from holding any office of profit in the service of AJ&K in sub-section (7) of Section 43 is not absolute. A Judge of High.Court is only debarred from holding any other office in the service of AJK, if such office carried higher emoluments than the salary of a Judge or to occupy, during his tenure of office, any other position carrying the right to remuneration for services. The wisdom appears to be that where terms and conditions. are provided by a subordinate law then a Judge is debarred from accepting the office but where the salary is not increased then the performance of additional, duties will not disqualified Judge. The disqualification provided by sub section (7) of Section 43 con not be equated with the removal of a Judge as the mode of appointment and removal is again provided in the Constitution itself. If such an eventuality arises, even then a Judge has to be asked to make a choice between the two. The view is supported by the PLD-1976-SC.Pak.-315. The proposition has also been considered by the Apex Court of Pakistan in Malik JiIlani's case (1978-SCMR-110). The relevant observation is as under:- "The provisions of Article 126(1)(a) as amended in 1965 were incorporated in Article 209 of the Interim Constitution and have been. reproduced in Article 207 of the 1973 Constitution. The intent of the Constitution thus becomes manifest that a Judge of the High Court or the Supreme Court may be appointed to hold any other office of profit in the Service of Pakistan if his remuneration is not thereby increased. Such an appointment, would not result in termination of his Office as a Judge as specific provisions are made in the Constitution for such an eventuality. Under Article 179 of the 1973 Constitution a Judge of the Supreme Court shall hold office until he attains the age of sixty-five years, unless he sooner resigns or is removed from office in accordance with the Constitution.
Similarly Article 195 provides that a Judge of a High Court shall hold .Office until he attains the age of sixty-two years unless he sooner resigns or is removed from Office in accordance with the Constitution. As Mr. Justice Muhammad Gull had neither attained the age of sixty-two years, nor resigned, nor was he removed from the Office of a Judge during the period he served as Secretary, Ministry of Law and Parliamentary Affairs, he continued to be a Judge of the High Court. As the appointment was made with effect from April 20, 1965 he was on April 14, 1973 qualified to be appointed a Judge of this Court under Article 1.78 (2) (a) of the Interim Constitution."
The same view is expressed in PLD-1978-SC-40 and PLD 1978-K-88. In view of the above discussion, we repel the contention of the learned Counsel for the petitioners that the respondent was or is disqualified to hold the office of Chief Ehtisab Commissioner.
23. It was next contended by the learned Counsel for the petitioners that the respondent was a non-Muslim (Ahmed]) and was thus disqualified from being appointed as Chairman Ehtisab Bureau or Mohtasib (Ombudsman) in an Islamic State, the duties assigned to the said offices being of Divine origin. It was argued that Section 3 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, categorically provides that Islam shall be the State religion. Subsection (5) of Section 31 also places an embargo on the powers of the AJ&K Council as well as the Legislative Assembly to enact any law repugnant to the teachings and requirements of Islam as set out in the Holy, Quran and Sunnah. It is als commanded that all existing laws shall be brought in conformity with the Holy Quran and Sunnah.
According 'to sub-section (4) of Section 5 and sub-section (2) Section 13 of the Interim Constitution, only a Muslim can be elected a Prime Minister or President. The aforesaid provisions are provided b the legislature keeping in view the fact that about 95% population the State is Muslim. The learned Counsel argued that the Preside and the Prime Minister being Constitutional heads of State an Executive are under constitutional obligation to carry out the will of the legislature as commanded by the Constitution. The offices Chairman Ehtisab Bureau and Mohtasib are of Divine origin and establishment of the same is the primary duty of an Islamic State therefore, the President and the Prime Minister are duty bound to se that no non-Muslim is appointed for carrying out the purpose provided in the preamble of the AJ&K Ehtisab Bureau Act, 2001 or the Establishment of the Office of Mohtasib (Ombudsman) Act, 1992. Th learned Counsel has categorically stated that the respondent is a non Muslim on the ground that he does not believe in the finality of the Prophet hood of Muhammad (P:B.U.H.). The learned Counsel ha contended that the appointment of the respondent to the office o Chairman Ehtisab Bureau and Mohtasib is 'against the command o the Constitution. The learned Counsel has supported his argument only by referring to his pleadings and stated that the respondent has not denied his being 'Ahmedi' specifically or by filing any affidavit. The reply being evasive shall be treated as admission in view of Order 8 Rule 5 of C.P.C. The learned Counsel further stated that non-filing of counter affidavit is tantamount to admission of the facts pleaded in the petition. He referred to and relied upon 1993 SCR 88, 1991 CLC 85, 1996' SCR 351 and PLD 2000 SC(AJK) 50.
24. The learned counsel for the respondent controverted the argument of the learned counsel for the petitioner and stated that the averments made by the petitioners in this respect have been sufficiently answered by the respondent in his written statement in which he has categorically stated that he is a Muslim in accordance with sub-section (3) of Section 2 of the Interim Constitution Act, 1974. The learned Counsel further stated that, be as it may, there is no such qualification provided in the statute i.e. the Ehtisab Bureau Act, 2001 or the Mohtasib Act, 1992. The learned Counsel 'also objected to the style of pleading of the petitioners. Mr. Umar Mahmood Kasuri, 'the learned Advocate appearing for the Chairman AJ&K Council attempted to make us convinced that it is not the intention of the. law makers that only a Muslim can be appointed as Chairman Ehtisab Bureau or Mohtasib Azad Jammu and Kashmir The learned Counsel by referring to the provisions of Ehtisab Act, 2001 and Mohtasib Act, 1992 contended that no disqualification as alleged by the petitioner is provided in the statutes and any disqualification cannot be read in a statute by implication. The learned Counsel contended that under the provisions of the Constitution that the President as well as the Prime Minister shall be Muslim. For all offices including the Acting President, acting Prime Minister, Speaker and the Judges of the Superior Courts, c., there is no such condition precedent that their holder should be Muslim. Therefore, if cannot be said that the appointment of the respondent is contrary to the provisions of the Constitution. The fact of e matter is that the respondent is Muslim and believes in the elementary components of Faith including in the absolute and qualified finality of the Prophet hood of Muhammad (P.B.U.H.) as enshrined in sub-section (3) of Section 2 of the Interim Constitution.
25. The question relating to faith of a person, as for ample the religious status of being a Muslim or Ahmedi, can only be decided in accordance with the claim made by that person. The question affecting faiths, rights and susceptibility of individuals cannot disposed of without ascertaining their point of view as opined in LD 1993-SC 439. The categorical stand of the respondent that he is Muslim and his faith is in accordance with sub-section (3) of Section of Azad Jammu and Kashmir Interim Constitution Act, 1974 cannot. e brushed aside in view of PLD-1976-SC-Lah-1068. But in the resent case we are not even called upon to declare whether the spondent is a Muslim or Ahmedi as this question is not directly involved. What we are called upon to decide in the present ontroversy is whether or not a non-Muslim can be appointed to the office of Chairman Ehtisab Bureau or Mohtasib of Azad Jammu and Kashmir. The learned Counsel for the petitioners has not been able to point out any disqualification provided either in the AJ&K Ehtisab Bureau Act, 2001 and the preceding Ordinances or the AJ&K Establishment of the. Office of Mohtasib (Ombudsman) Act, 1992 for a person to be appointed as Chairman Ehtisab Bureau or Mohtasib merely on the ground of being non-Muslim. Disqualifications, where Intended by the legislature, are provided in clear terms. For example, or being elected to the office of President the qualification of being a Muslim is clearly provided in sub-section (4) of Section 5 of the AJ&K Interim Constitution. The same qualification is provided in clear terms sub-section (2) of Section 13 of the Constitution for being elected to e office of Prime Minister. Similarly the qualification of being a Muslim is provided in the AJ&K Shariat Court Act, 1993 for Judges d Chief Justice of the Shariat Court. It can, therefore, be said that n-inclusion of any qualification such as being a Muslim for appointment to the office of Chairman Ehtisab Bureau or Mohtasib as intentional. Anyway, Courts cannot add any qualification in a statute of their own especially when there is no absurdity, ambiguity or any contradiction in its various provisions. We, therefore, hold that the respondent was not disqualified to be appointed to the office of Chairman Ehtisab Bureau or Acting Mohtasib.
26. The objection of the learned Counsel for the respondents that writ petition has not been filed for the supremacy of law and in fact is a counter blast to the lawful action taken by respondent No. 1 as a Judge of the Supreme Court and subsequently as a Chairman of the Ehtisab Bureau (mentioned in the earlier part of the judgement while noting preliminary objection of the respondent) is of fundamental nature which in our opinion goes to the root of the case. The learned Advocate referred to and relied upon PLD-1993- SC-AJK-13 and contended that principle of law laid down in the aforesaid authority is fully attracted in the present case.
2i. Mr. Mujahid Hussain Naqvi, Advocate, referring to 1994-S.C.R-323 and 2000 P.S.C-165, submitted that mere delay is not relevant to judging the bona fides of the relator. We have no quarrel with the preposition that mere delay does not disentitle any informer from seeking relief in a writ of quo warranto, and similarly the petitioner need not to be an aggrieved person but the writ of quo warranto as held by the superior Courts, cannot be issued- as a matter of course on sheer technicalities by a doctrinaire approach. The Court is competent to test the bona fides of the relators to see as to whether he has approached the Court with clean hands and for supremacy of law. The fact that the respondent in his capacity as a Judge has decided the case against the petitioner and as a Chairman Ehtisab Bureau has initiated some proceedings for inquiry have not been denied by Mr. Mujahid Hussain Naqvi. Similarly the other petitioners are also proceeded under the provisions of the Ehtisab Bureau Act an the challan was presented before the competent Court which resulted in conviction of the petitioners, hence, the petitioners cannot be held bona fide relators. We are supported by P.L.D-1969-S.C-42. It will be useful to reproduce the observation of the Apex Court while dealing with the same situation.
"Under Article 98(2)(b) "any person" and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority". On that account it cannot be doubted that Mr. Siraj-ul-Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinaire approach. In the present case, considering all the circumstances I cannot escape the feeling that Mr. Siraj-ul-Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition no so much---for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations. The delay that has occurred in the filing of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief. The election of the appellants and the other members. of the Council was duly notified on the 20th of December 1966. They have been in office discharging their duties since the 1st of January 1967. The writ petition in the High Court was filed 9 months later on the 12th of September 1967. The alleged disqualification of the appellants . and the two respondents which formed the main basis of the writ, was of an artificial and ephemeral character, which vanished on the date when those members took charge of their functions. They did not suffer from an inherent disqualification of any sort. In the circumstances I feel very strongly that it was not at all fit case for the issuance of a writ of quo warranto by the High Court."
28. Similar preposition was also considered by the Supreme Court of Azad Jammu and Kashmir in a case titled 'Manzoor Hussain Gilani v. Sain(P.L.D-1993-S.C.A.K-13). The learned Judge in his capacity as a Judge of the High Court issued a show cause notice for contempt of Court and after receiving the notice, Mr. S.M. Loan, Advocate, filed a writ of quo warranto against the Judge. The Apex Court after considering the delay as well as bona fide of the petitioner observed as under:- "It may be observed that the principle of laches is not strictly applicable to a case of quo warranto but it is definitely a relevant consideration in case of a quo warranto if male fides is pleaded in defence. In the present case it has been argued on behalf of the appellant that the relator- respondent who was a practising advocate of the High Court did not challenge the enrolment of the appellant as pleader, advocate or his appointments as Advocate-General and the Judge of the High Court earlier and he came with the present writ petition only to wreak vengeance and not with bona fide intention of upholding the majesty of law or in the public interest. It was argued that the question of laches is very relevant in this case because it is on the record that the present petition was filed only when the appellant, herein, as Judge of the High Court, moved the Chief Justice of the High Court to initiate the contempt of Court proceedings against the contesting respondent in a case. A notice of the contempt of Court was issued by the Chief Justice at the instance of the appellant who as Judge of the High Court was seized with the matter in which contempt was alleged to have been committed. Thus, for judging the 'bona fides' of contesting respondent, the question of laches is not only relevant but also important. The writ petition entailed dismissal on the sole ground of mala fide irrespective of the merits of the writ petition. A reference was made to the following authorities in support of contention:-
1. Dr. Kama/ Hussain v. Muhammad Sirajul Islam PLD. 1969 SC 42 and(2) Syed Ali Raza Asad Abidi v.
Ghulam Ishaq Khan, President of Pakistan PLD 1991 Lah. 420.
We have given due consideration to the matter and in view of the principle laid down in the above authorities, particularly the case reported as Syed Ali Raza Asad Abidi Ghulam Ishaq Khan, President of Pakistan (PLD 1991 Lah. 420), it is evident that in a case of quo warranto the question of laches is relevant to test the bona fides of the relator. In the present case there is no explanation whatsoever as to why the respondent did not challenge either the enrollment of the appellant as a pleader, and Advocate or his appointment as Advocate-General previously and kept mum for about 13/14 years and 5 years respectively in each case. He also failed to challenge the appointment of the appellant as Judge of the High Court for one year and two months. He filed the writ petition when the notice of contempt of Court was served upon him at the instance of the appellant. We are of the view-that the contesting respondent filed the present writ petition due to the aforesaid incident, i.e., the initiation of the contempt of Court proceedings against him and not for serving the cause of law or in the public interest, especially so because no explanation for delay in filing the writ petition has been put forth. It may be stated that delay in a case of quo warranto is considered as an important piece of evidence in support of plea of mala fides of the relator. It is specially so when the relator was not an aspirant to the office which he intends to get vacated. It is settled principle of law that in absence of bona fides a writ of quo warranto must be refused on this sole ground. A reference may be made to a case reported as Dr. Kamal Hussain v. Muhammad Sirajul Islam, P.L.D-1969-SC 42, wherein it was observed that it is quite legitimate to test the bona fides of the relator and to see that he has come with clean hands in writ jurisdiction. A writ of quo .warranto in particular is not to be issued as a doctrinaire approach. Identical view has been expressed in Syed Ali Raza Asad Abidi v. Ghulam lshaq Khan, PLD 1991 Lah. 420. So much so that in some cases of writ of quo warranto, the Courts even insisted that relator must show the invasion of his personal right where there is a plea of mala fide, despite the fact that a writ of quo warranto may be sought even by a person who has no personal interest in the matter. A reference may be made to the case reported as Masudul Hussan v. Khadim Hussain, PLD 1963 SC 203 and Surendra Mohan Patniak v. Gopal Chandra Patnaik, AIR 1952 Orissa 359. Thus, we are of the view that the writ petition entailed dismissal on this sole ground."
The same preposition again came under consideration of the Apex Court of Azad Jammu and Kashmir in Civil Appeal No. 40 of 1997 titled 'Raja Bashir Ahmed v. Azad Jammu and Kashmir Council and others'. The facts of the case were that Raja Bashir Ahmed Khan filed a writ petition before the High Court and the case was decided by the learned Judge with certain remarks against the petitioner. Raja Bashir Ahmed Khan, thereafter filed a writ of quo warranto which was also dismissed by the full bench of the High Court in limine and an appeal was taken before the Supreme Court. The Apex Court after considering the controversy dismissed the appeal of Raja Bashir Ahmed Khan appellant therein. The authority referred to and relied upon by Mr. Mujahid Hussain Naqvi, 1994-S.C.R-323, was also discussed in the judgment. The relevant observation is on page 19 of the judgment which is to the following effect:- " The above extract of the judgment shows that it was simply observed by this Court that...mere delay in the case of quo warranto is not fatal but in view of circumstances of that case it was observed that it is yet to be ascertained after the resolution of controversial facts as to whether the respondent in that case was reluctant to administer oath of office to the members of the Assembly due to male-fides because the question of male fide had not been resolved by the High Court. The case in hand is clearly distinguishable than the case of Ishaq Zafar as the High Court in the present case has reached a positive conclusion that filing of the writ petition by the appellant .against. the respondent Judge appears to have been actuated by malice. We are also of the view that circumstances of the case positively suggest that the writ petition was filed merely to. wreak his vengeance especially so when the finding adversely affecting the interests of appellant had been recorded by the respondent Judge and a writ of similar nature first having been filed in the High Court against another Judge was dismissed by the judgment written by the respondent Judge as a member of the Bench and the appeal taken to the Supreme Court was withdrawn, without furnishing any explanation. This aspect of the matter lends support to the contention that the writ filed against respondent No. 3 is clearly actuated by malice.
The High Court was fully justified in our view in dismissing the writ petition filed by the appellant in limine as no useful purpose would have been served by admitting the petition. This Court has expressed its dis-satisfaction over the admission of writs in routine against the Judges of the High Court in the respondents Judge's case at page 23 of the judgment in the following words:- "Needless to say, in our society if notices of quo warranto are issued against .Judges of a superior Court as a matter of routine, it is likely to encourage the vexatious proceedings against the Judges so as to harass them rather than seeking redressal of genuine grievance. In light of the above conclusion, we are of the opinion that the High Court was not justified in issuing the notice in the case."
In view of above discussion, we are of the view that the petitioners in both the petitions are not bona fide relators and the petitions have not been filed for the supremacy of law.
29. In view of the above discussion, finding no force in these petitions, the same are dismissed.