PLJ 1998 SC (AJK) 56 [Appellate Jurisdiction]

PLJ 1998 SC (AJK) 56 [Appellate Jurisdiction]

Present: SARDAR SAID MUHAMMAD KHAN, C. J AND

basharat ahmad shaikh, J.

AZAD JAMMU AND KASHMIR COUNCIL through SECRETARY, NEW SECRETARIAT, ISLAMABAD, PAKISTAN-Appellant

versus

AJMAL BASHARAT & 6 others-Respondents Civil Appeal No. 61 £ 62 of 1997, dismissed on 7.1.1998.

(On appeal from the order of High Court dated 29.4.1997 . in Writ Petition No. 5 of 1996)

A J & K Interim Constitution Act, 1974--

—-S. 2-Petitioners-respondents visited Azad Kashmir on Indian Passports, stayed there and applied for permanent settlement-Whether they were State Subjects and were residing in Azad Kashmir at time when they filed writ petitions in High court and were allowed to stay—Question of— Perusal of record shows that petitioners-respondents had been residing in Azad Kashmir for more than one year at time of filing of their Writ Petitions-Averments made by Petitioners-respondents in their writ petitions were not denied in written statement filed by respondent that petitioners-respondents were not state subjects or they had not been residing in Azad Kashmir since date which they had mentioned in their writ petitions-Averments with regard to factum of petitioners-respondents being state subjects have not been specifically denied by respondents in their written statements including appellant—Held: Petitioner-respondents are state subjects and have been residing in Azad Kashmir for hiore than one year prior to institution of their writ petitions in HighKJourt.

[P. 63] A & B

(ii) AJ&K Interim Constitution Act, 1974--

—S. 44-Petitioners-respondents hailed from held Jammu-Kashmir state on Indian passports and applied for permanent stay in Azad Kashmir-Whether they can be allowed to stay even if they are held state subject of Azad Kashmir-Question of-Learned counsel for appellant has also argued that when petitioners-respondents came on visas issued by Pakistan Embassy in Delhi and subsequently came to Azad Kashmir with ermission off concerned authority of Govt. of Pakistan they cannot be allowed permanent stay in Azad Kashmir, even if they are held to be state subjects-Held: Mere fact that petitioners- espondents devised entry into Azad Kashmir by obtaining Indian pass-port, visas from Pakistani Authorities and thereafter said permission of Government of Pakistan would not deprive them of permanent stay n Azad Kashmir when they are state subjects and have right to reside in any part of state of Jammu and Kashmir. [P. 64] C

PLD 1993 AJ&K 153, PLD 1995 AJ&K 1, AIR 1974 AJ&K 48,

PLD 1970 AJ&K 48, PLD 1970 AJ&K 88 and

PLD 1993 SC (AJ&K) 12.

(iii) AJ&K Interim Constitution Act, 1974-

—S. 44-Petitioners-Respondents visited Azad Kashmir on valid visa issued by Pakistan Embassy and filed writ petition seeking permanent stay in Azad Kashmir-Whether writ was competent-Question of-Contention of learned counsel for appellant that Azad Jammu and Kashmir High Court was not competent to issue writ, because Interior Ministry of Pakistan or for that matter Federation of Pakistan were not amenable to writ jurisdiction of High Court has no substance-Action against petitioner-respondents was taken by Azad Jammu and Kashmir Council and subsequently by functionaries of Azad Government of State of Jammu and Kashmir letters were issued by Azad Jammu and Kashmir Council SECRETARIAT to Home Department of Azad Government requesting that petitioners-respondents may be directed to leave for India within fifteen days-Home Department of Azad Jammu and Kashmir, in turn issued instructions to Superintendent of Police for expulsion of petitioners-respondents-Held: Writs filed by petitioners-respondents were maintainable-Appeals without force are accordingly dismissed.

[P. ] D, E & F

PLD 1995 SC (AJK) 1. Mr. Umar Mahmood Kasuri, Advocate for Appellants.

Mr. Ghulam Mustafa Mughal, Advocate for Ajmal Basharat, Advocate for Respondent.

&yed Nazir Hussain Kazmi, Advocate for Muzaffar Hussain, Respondent.

Raja Shiraz Kayani, Advocate General for Respondents No. 3, 5 and 7 in both Appeals.

Date of hearing: 11.12.1997.

judgment

Sardar Said Muhammad Khan, C.J.--As identical questions of law are involved in the above entitled appeals, we propose to dispose of the same by this single judgment.

2. The brief facts of Appeal No. 61, entitled above, are that Ajmal Basharat, respondent No. 1, filed a writ petition in the High Court contending that he is hereditary State Subject of Jammu and Kashmir State and hails from village Onagam, Tehsil Baramula, occupied Kashmir. He came to Pakistan on Indian passport and thereafter entered into Azad Kashmir with the permission of concerned authorities of Pakistan. Subsequently, he got admission in Degree College, Muzaffarabad, as a student of B.Sc. 3rd year and passed the examination held in the year 1996. He further averred that he wanted to permanently settled in Azad Kashmir because he was closely affiliated with freedom movement in occupied Kashmir and in case of his return to Indian held Kashmir, he apprehended danger to his life. Consequently, he applied to the concerned authorities of Azad Jammu and Kashmir to permanently settle here after surrendering the Indian passport. But the Azad Jammu and Kashmir Council directed the Home Secretary of Azad Jammu and Kashmir Government to direct the respondent to leave Azad Kashmir within fifteen days. Consequently, respondent No. 1 filed a writ petition seeking a writ of prohibition against the respondents not to force him to go back to Indian held Kashmir.

3. The facts of Appeal No. 62, entitled above, are that Muzaffar Hussain, respondent No. 1, claims to be State Subject and was residing in Poonch city, occupied Kashmir. He came to Pakistan on Indian passport and subsequently came to Muzaffarabad in May 1995 with the permission of the concerned authority. During his stay in Pakistan and Azad Kashmir, the petitioner sought permission to permanently settle at Muzaffarabad but his request was turned down and instead he was ordered to leave Azad Kashmir. Thus, he filed a writ petition in the High Court contending that he being a State Subject cannot be forced to return to Indian held Kashmir, he also challenged the legality of the orders dated 26.6.1996 and 10.7.1996. whereby he was directed to leave the territory of Azad Kashmir within
certain period by contending that he being a State Subject had a legal right to reside in any of the parts of the State, whether Indian occupied Kashmir or Azad Kashmir.

4. The appellant, herein, opposed the permanent stay of petitioners- respondents in Azad Kashmir on the ground that the Government of Pakistan, who is responsible for the security of Azad Jammu and Kashmir territory did not favour their stay in Azad Kashmir in view of the reports made by the concerned authorities of Azad Kashmir. It was also contended that after obtaining visas from Pakistan Embassy at New Delhi, and the permission to visit Muzaffarabad for a specified period, the petitioners- respondents could not legally insist to stay permanently in Azad Kashmirterritoiy. It was further contended that the status of the petitioners-respondents heing State Subjects of the Jammu and Kashmir was also doubtful.

5. After taking necessary proceedings in the above entitled writ petitions, the High Court accepted both the writ petitions observing that the petitioners-respondents being State Subjects could not be legally forced to go back to Indian occupied Kashmir against their wishes. Consequently, the writs of prohibition were issued against the appellant and others.

6. We have heard the arguments and perused the filed. Mr. Umar Mahmood Kasuri, Advocate, the learned counsel for the appellant, has contended that the High Court has committed an error in allowing the writ petitions because it is not established that in fact the petitioners-respondents are the State Subjects. The learned counsel has contended that even according to the case of the respondents themselves, they came to Pakistan on Indian after obtaining visas from Pakistan Embassy at Delhi and were permitted to visit Azad Kashmir by the concerned authorities for a limited period but later on the petitioners-respondents went upon their undertakings and sought permission to stay permanently in Azad Kashmir. Therefore, they were not entitled to any relief in exercise of writ jurisdiction. The learned counsel has further submitted that as the matter of security and defence of Azad Jammu and Kashmir State is the responsibility of the Government of Pakistan, the petitioners-respondents cannot be permitted to stay in Azad Kashmir on permanent basis, especially so when the local administration was also against such stay. The learned counsel has further submitted that taking into consideration the definition of 'State Subject'. given in section 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, only a person 'for the time being residing' in Azad Jammu and Kashmir or Pak stan can be deemed to be a 'State Subject' for the protection of any of his fundamental rights by invoking the writ jurisdiction of the High Court and not a person who was not so residing. Thus, the learned ounsel has contended that as prior to the filing of writ petitions, the petitioners- respondents were not residing in^Azad Kashmir or Pakistan but were visiting Pakistan and Azad Kashmir in pursuance of Indian passports and the visas issued by the Pakistan Embassy, they had no locus standi to invoke the writ jurisdiction of the High Court. The learned counsel has further argued that even otherwise, the High Court had no jurisdiction to issue a writ against the Government of Pakistan, because it was beyond its jurisdictional competence.

7. Raja Shiraz Kayani, Advocate-General, appearing on behalf of respondents Nos. 3, 5 and 7, (Azad Jammu and Kashmir Government, TheDistrict Magistrate Muzaffarabad and The Superintendent of Police, Special Branch, Muzaffarabad) opposed the contentions of the learned counsel for the appellant that the petitioners-respondents being State Subjects were not legally entitled to a permanent stay in Azad Kashmir. He has argued that there is quite a number of authorities of the superior Courts of Azad Kashmir in support of the view that State Subjects residing in either sides oi line of control can legally reside or settle in any place, whether it is situated in Indian held Kashmir or Azad Kashmir. The learned counsel did not deny the status of the petitioners-respondents as being State Subjects within the meanings of the relevant law.

8. Mr. Ghulam Mustafa Mughal and Syed Nazir Hussain Shah Kazmi, Advocates, the learned counsel for the petitioners-respondents, controverted the arguments advanced by the learned counsel for the appellant and have maintained that no writ can be issued against the Government of Pakistan; they submitted that under section 44 of the Interim Constitution Act, 1974, a writ can be issued against any person who performs functions in connection with the affairs of Azad Jammu and Kashmir whether such person is functionary of Azad Jammu and Kashmir Government, Azad Jammu and Kashmir Council or the Government of Pakistan. The only condition precedent is that such person must have acted in connection with the affairs of or in relation to Azad Jammu and Kashmir. Thus, in the instant case while passing the relevant orders directing the petitioners-respondents to go back to Indian held Kashmir, the Interior Ministry or for that matter the Federation of Pakistan would be deemed acting in connection with the affairs of Azad Jammu and Kashmir because the same was forcing the State Subjects to leave Azad Kashmir against their wishes. It has been further contended that it has not been specifically denied even by the appellant in its written statements that the petitioners-respondents are not the State Subjects of Jammu and Kashmir State; besides, no counter affidavits were filed by the respondents in the High Court that the petitioners-respondents were not State Subjects. Thus, according to the learned counsel for the respondents taking into consideration the stand taken by the petitioners-respondents and the appellant in their pleadings, the High Court has rightly held that the petitioners-respondents are State Subjects. It has been further contended that the mere fact that the petitioners-respondents came to Pakistan on Indian passports and subsequently obtained requisite vises from Pakistan Embassy would not debar them from permanently settling in Azad Kashmir, especially so when Ajmal Basharat, one of the respondents, apprehends the danger to his life as being associated with freedom movement. It has also been argued on behalf of the petitioners-respondents that the argumentadvanced by the learned counsel for the appellant that as the petitioners-respondents were not residing in Azad Kashmir prior to their visit in pursuance of the said visas, they were not competent to file writ petitions even if they are State Subjects has no substance in it, because the expression 'for the time being residing' appearing in the definition of the 'State Subject' as given in the Interim Constitution Act merely postulates the physical presence if the concerned State Subject at the relevant time, irrespective of the duration of his stay and manner in which he first entered into Pakistan or Azad Kashmir. Thus, the question that initially the petitioners-respondents entered into Azad Kashmir with the permission of Government of Pakistan has no legal bearing on the reliefs given to the petitioners-respondents by the High Court. It has been also contended that both the petitioners-respondents who sought permission to reside in Azad Kashmir have been living in Azad Kashmir for quite some time when they were ordered to leave Azad Kashmir within a certain period, as such, it cannot be said that they were not 'residing in Azad Kashmir' within the meanings of the definition of the words 'State Subject'. The learned counsel for the petitioners-respondents have cited following authorities in support of their contentions:-In case reported as Ghulam Hussain v. Federal Government of Pakistan (PLD 1993 Azad J & K 153), it was observed that a person does not lose his status merely because he or she has obtained a passport either from Pakistan or India; it was opined that the State Subjects living in either parts of the State had no means of travelling around the world, except through passports of India or Pakistan. Thus, the passport issued to a State Subject would not determine his nationality; it would only legalise his international travel. It was also observed that a State Subject could not be deprived of his status as such merely because he had obtained the passport from India or Pakistan. It was further observed that the High Court had the jurisdiction to issue a writ against the Government of Pakistan, if it acts in connection with the affairs of Azad Jammu and Kashmir. Consequently, a writ was issued by the High Court in terms that the petitioner who sought permanent stay in Azad Kashmir should not be deported to India.In case reported as Ayub Azeez Khan v. Jammu and Kashmir Council (PLD 1995 Azad J & K 1), the State Subjects who were residents of Indian held Kashmir entered Pakistan on Indian passports and then shifted to Azad Kashmir. They sought direction from the High Court to the authority concerned not to push them 'back to Indian held Kashmir and allow them to reside in Azad Kashmir permanently. It was observed by the High Court that the petitioners-respondents had valid right to reside in any part of the Azad Kashmir and, thus, they could not be forcibly deported to Indian held Kashmir. It was further observed that the mode of travelling on passports could not place embargo on the vested rights of the State Subjects to reside permanently in Azad Kashmir, especially so when the Azad Kashmir Government also supported their stand.In case reported as S. Mohsin Shah v. The Union Govt. of India (AIR 1974 J & K 48), it has been observed that whether while holding inquiry under section 9 of the Citizenship Act, 1955, a personal hearing should be given to the person concerned or not, depends on the circumstances of each case. It was opined that where a person raises a special plea that he was compelled by any force and circumstances to obtain a passport from foreign country, the Government should certainly consider the desirability of giving him a personal hearing and an opportunity to adduce evidence in support of his plea. It was observed that failure to give the petitioner a personal hearing or an opportunity to adduce oral evidence to prove his plea would vitiate the inquiry held by the Central Government.In case reported as Jalal Khan v. Imam Din (TLD 1970 Azad J & K 88), it was observed that forcible occupation of a part of the State by invading Indian army and perpetuation of its occupation against the wishes of people would not turn Indian occupied territory as foreign country so far as nationals of Jammu and Kashmir living in Azad Kashmir were concerned. Thus, it was held that the judgment delivered by Jammu and Kashmir High Conn during the Dogra Regime and before the liberation of Azad Kashmir territory was not a 'foreign judgment' requiring a certificate as envisaged under section 86 of the Evidence Act, 1872.In case reported as Syed Manzoor Hussain Gillani v. Sain Mullah, Advocate (PLD 1993 SC (AJ&K) 12), it was observed that in view of section 2 of Azad Jammu and Kashmir Interim Constitution Act, 1974, a person who comes to Azad Kashmir on Indian passport did not cease to be a State Subject within the meaning of notification No. I-L/84 dated 20.4.1927.9. We have given our due consideration to the arguments raised at the bar. The first question which needs resolution is as to whether the petitioners-respondents are State Subjects and were residing in Azad Kashmir at the time when they filed their writ petitions in the High Court. The perusal of the record shows that the petitioners-respondents had been residing in Azad Kashmir for more than one year at the time of filing of their writ petitions. The averments made by the petitioners-respondents in their writ petitions were not denied in the written statement filed by the respondent that the petitioners-respondents were not the State Subjects or they had not been residing in Azad Kashmir since the dates which they had mentioned in their writ petitions. The High Court has observed that the averments made in the writ petitions filed by the petitioners-respondents were supported by the affidavits but no counter affidavits were filed by the respondents. Thus the High Court came to the conclusion that both the petitioners-respondents are State Subjects as defined in Notification No. I-L/84 dated 20.4.1927. It may be observed here that the perusal of the writ petitions filed by the petitioners-respondents and the written statements filed by the respondents shows that the averments with regard to the factum of the petitioners-respondents being the State Subjects have not been specifically denied by the respondents in their written statements, including the appellant, herein. Therefore, we have no hesitation in holding that the petitioners-respondents are State Subjects and have been residing in Azad Kashmir for more than one year prior to the institution of their writ petitions in the High Court. It may be stated that the word 'residing' merely means physical 'dwelling' in Azad Kashmir or Pakistan on the relevant date; it was not necessary for them to prove that they had been so residing for a definite period prior to the filing of the writ petitions. For the sake of convenience the definition of 'State Subject' given in section 2 of the Azad Jammu and Kashmi Interim Constitution Act is reproduced below:-"State Subject' means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No. I-L/84, dated 20th April, 1927, as amended from time to time."(Underlining is ours).

10. It may be observed that the word 'residing' used in the above mentioned definition is not synonymous with the word 'domicile' as stipulated under section 5 of the Azad Jammu and Kashmir State Subject Act 1980 which postulates that for being a domicile a person must have been contimiously living in Azad Kashmir for a period not less than 5 years andmust also have intention to live permanently in Azad Jammu and Kashmir. Thus the word 'residing' used in the aforesaid definition does not mean that for invoking the writ jurisdiction of the High Court, a State Subject has to prove that he is a domicile of Azad Kashmir. He has merely to show that he was either residing in Azad Kashmir or Pakistan prior to the institution of the writ petition, irrespective of the period for which he had heen so residing. It would be expedient here to reproduce below the ordinary meanings o£ the word 'reside' as given in Blacks Law Dictionary so as to elucidate the matter further: -"Reside. Live, dwell, abide, sojourn, stay, remain, lodge."Thus, the contention of the learned counsel for the appellant that the petitioners-respondents would not be deemed to be residing in Azad Kashmir as State Subjects when they filed writ petitions has no substance and is hereby repelled.

11. The contention of the learned counsel for the appellant that as the security and defence of Azad Jammu and Kashmir is the responsibility of the Government of Pakistan under the Interim Constitution Act, 1974, the petitioners-respondents were rightly refused permanent stay in Azad Kashmir. It may be stated that there is no allegation muchless any material to justify the contention that they stay of the petitioners-respondents in Azad Kashmir would pose any threat to the security or defence of Azad Jammu and Kashmir territory. Assuming that there were any such allegations, the same should have been inquired into and an opportunity of hearing should ave been afforded to the petitioners-respondents. Mere general allegation that stay of the petitioners-respondents would jeopardise the security of Azad Jammu and Kashmir would not suffice to refuse the relief to which they are otherwise found entitled.

12. The learned counsel for the appellant has also argued that when the petitioners-respondents came on visas issued by Pakistani Embassy in Delhi and subsequently came to Azad Kashmir with the ermission of the concerned authority of Government of Pakistan, they cannot be allowed permanent stay in Azad Kashmir, even if they are held to be State Subjects. The mere fact that petitioners-respondents devised the entry into Azad Kashmir by obtaining Indian passport, visas from Pakistani Authorities and thereafter the said permission of the Government of Pakistan would not deprive them of permanent stay in Azad Kashmir when they are State ubjects and have right to reside in any part of the State of Jammu and Kashmir as has been held in the authorities, referred to above. The contention of the learned counsel for the appellant that the Azad Jammu and Kashmir High Court was not competent to issue a writ inthe present case because the Interior Ministiy of Pakistan or for that matter the Federation of Pakistan were not amenable to the writ jurisdiction of the High Court has also no substance. As has already been seen', action against the petitioners-respondents was taken by the Azad Jammu and Kashmir Council and subsequently by the functionaries of the Azad Government of the State of Jammu and Kashmir. Letters were issued by the Azad Jammu and Kashmir Council Secretariat to the Home Department of the Azad Government requesting that the petitioners-respondents may be directed to leave for India within fifteen days. Home Department of Azad Jammu and Kashmir, in turn issued instructions to the Superintendent of Police for expulsion of the petitioners-respondents. These are the orders which were challenged by the petitioners-respondents by filing writ petitions in the High Court. The question whether a writ, can be issued to Government of Pakistan by the Azad Jammu and Kashmir High Court was considered at some length by the Full Court in a case reported as Federation of Pakistan u. Malik Muhammad Miskeen (PLD 1995 S.C. (AJK) 1), and it was observed as under:-"After giving due consideration to the matter, we are of the view that a writ against the Federation of Pakistan would be competent if the matter fails within the ambit of section 44 of the Interim Constitution Act, 1974 and an act or omission is committed while performing functions in connection with the affairs of Azad Jammu and Kashmir. However, the present writ petition was filed by the petitioners-respondents alleging that the Northern Areas are under the administration of the Government of Pakistan and the relief was sought against it and not against the Azad Jammu and Kashmir Council. As the writ has been filed against the Federation of Pakistan, it is to be decided as such. Thus, an argument with reference to the functions of the Azad Jammu and Kashmir Council is not relevant to the matter in dispute. Consequently, an act of the Government of Pakistan purported to have been done under the Interim Constitution Act, 1974 is not immune form judicial review of the High Court of Azad Jammu and Kashmir."The writs filed by the petitioners-respondents were, therefore, maintainable,In the light of what has been stated above, finding no force in the „ appeals the same are hereby dismissed.

(B.T.) Appeals dismissed.