Sardar JAVED NAZ, ADVOCATE SUPREME COURT Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance XVIII of 2014 dated 01.12.2014, has been challenged for having been issued against judgment of the apex Court in case of Bashir Ahmed Mughal v. Azad Govt. and 6 others dated 25.08.2014 and directly in conflict with provisions of Constitution Act, 1974. The legality and propriety of recommendations and appointment's Notification No.LD/AD-355-425/15 dated 27.03.2015, of private respondents Nos. 5 and 6 pertaining to the posts of Judges Shariat Court, have also been challenged as illegal, non-transparent, without merit, contrary to the concept of independence of judiciary and violative of judgments of the apex Court in Muhammad Younas Tahir, as well as, Bashir Ahmed Mughal's cases. A writ in the nature of quo warranto is also solicited against private respondents Nos.5 and 6 to show under what authority of law they are holding the public office of the Judges Shariat Court with further prayer to declare the aforesaid posts as vacant due to repeal of the impugned Ordinance.

2. The precise facts of the instant writ petition are that petitioners are Members of legal fraternity who claimed to firmly believe in supremacy of Constitution, independence of judiciary, equality before law and equal protection of law. The Legislative Assembly has enacted the Azad Jammu and Kashmir. Shariat Court Act, 1993, through which Azad Jammu and Kashmir Shariat Court has been established. The provisions of Section 3 of the aforesaid Act, provides qualification and mode of appointment of judges of the Shariat Court. It is maintained that in presence of the constitutional Courts in Azad Jammu and Kashmir, the establishment of the Shariat Court through legislative measures, was objected by the legal fraternity who also asserted that no parallel judicial system could be established pertaining to superior Courts as per Constitution. The vires of section 3 of the Shariat Court Act, 1993, was, however, challenged before this Court and matter was finally landed before the apex Court in case of Bashir Ahmed Mughal v. Azad Govt. and 06 others reported as [PLD 2015 SC (AJ&K) 31], whereby the aforesaid section was partially declared as ultra vires to the Constitution and all appointments made thereunder were also set at naught. It is averred that in unequivocal terms it was held by the apex Court that keeping in view status of the Shariat Court with relevant scope of jurisdiction, its establishment be made through amendment in the Constitution and if amendment is not immediately practicable for the time being, in that case through subordinate legislation. However, the official respondents without endeavouring to amend the Constitution Act, issued the Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance, 2014, which lacks features as expressed by the august Supreme Court in paragraph No.51 of the aforesaid judgment. It is stated that official respondents in pursuance of the Ordinance supra appointed all the Judges of the High Court as Judges of the Shariat Court for two months or till proper legislation vide notification dated 13.02.2015. It is claimed that no proper legislation in pursuance of notification ibid was made, however, the official respondents in collusion with each other appointed three Judges of the Shariat Court namely (i) Sardar Muhammad Shehzad Khan, respondent No.5, (ii) Mushtaq Ahmed Janjua, respondent No.6 and (iii) Ch. Muhammad Mushtaq, vide impugned notification dated 27.03.2015. However, on the very next day name of Ch. Muhammad Mushtaq, Advocate, Mirpur, was deleted for unknown reason vide notification dated 28.03.2015. The private respondents Nos.5 and 6, however, after taking oath are holding the posts of Judges Shariat Court. It is alleged that the impugned Ordinance and notification dated 27.03.2015, have been issued against spirit of supra judgment of the apex Court dated 25.08.2014, ultra-vires to the Constitution and against independence of judiciary, hence, petitioners constrained to file the instant constitution petition.

3. The writ petition has been resisted by respondents Nos.1 to 4 through written statement, wherein, it is stated that petition is not maintainable in view of the provisions contained in section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is averred that main thrust of petitioners in writ petition is on the consultation process regarding appointments of private respondents Nos.5 and 6, as judges of the Shariat Court alleging that during the aforesaid process, certain informations were either not placed before the Hon'ble Chief Justices of the Supreme Court and Shariat Court or were misrepresented. It is stated that advice or consultation of the Hon'ble Chief Justices is an act of the Supreme Court and High Court/Shariat Court respectively, however, both the said Courts being not amenable to writ jurisdiction of the High Court under subsection (5) of section 44 of the Constitution Act, 1974. It is alleged that the instant writ petition practically amounts to a review petition and recession of the consultation made by the aforesaid Hon'ble Chief Justices which is not permissible under law. It is further stated that writ petition merits dismissal on the ground that certified copies of orders/notifications have not been accompanied with it as per rule 32(2) of the High Court Procedure Rules, 1984. It is alleged that writ petition is based on mala fide which has been filed due to misconception of law as petitioners solicited relief to declare the posts of Judges of the Shariat Court as vacant due to repeal of the impugned Ordinance, 2014. However, apart from provisions of general law, the impugned notification of appointments of private respondents is protected under Section 56-c of the Interim Constitution Act, 1974, therefore, petition is bad in law even from this angle.

4. The writ petition is also contested by private respondents Nos.5 and 6 through separate detailed written statement, however, facts and grounds of the same are identical to written statement filed by the official respondents Nos.1 to 4, hence, the same are not reiterated here for the sake of brevity.

5. Raja Sajjad Ahmed Khan, the learned counsel for petitioners vehemently argued that as per judgment of the apex Court titled Bashir Ahmed Mughal v. Azad Govt. and 06 others (PLD 2015 SC (AJ&K) 31) dated 25.08.2014, it was paramount duty of the official respondents to give constitutional cover to the Shariat Court, however, they never took any step for amendment of the Constitution despite the fact that some members of Legislative Assembly pointed out for the purpose, however, the impugned Ordinance XVIII of 2014, was issued to frustrate the aforesaid judgment for mala-fide reasons. He maintained that the impugned Ordinance was framed on 01.12.2014, which was promulgated in extra ordinary Gazette on 12.12.2014. However, three days before the aforesaid promulgation the session of Legislative Assembly was convened and impugned legislation was also placed before the Assembly in the shape of a Bill, therefore, the said piece of legislation is against the basic provisions of section 41 of the Interim Constitution Act, 1974. He voiced serious grievance that the impugned Ordinance was issued by the official respondents in collusion with each other to appoint same persons whose appointments were set at naught by the august Supreme Court in case supra. He further argued that the impugned Ordinance was promulgated on 12.12.2014, which was expired on 11.04.2015, therefore, appointments of private respondents Nos.5 and 6 after repeal of the aforesaid Ordinance are no more in existence under law. The learned counsel while referring various documents appended alongwith writ petition and written statement of private respondents also criticized recommendations made in favour of private respondents. He argued that earlier minority judgment of this Court, which was finally landed before the apex Court in Bashir Ahmed Mughal's case (2014 SCR 1258), made it crystal clear that private respondent No.5 previously procured appointment of Judge Shariat Court against merit and purely on political basis which was set aside by the apex Court through judgment supra, however, within short span of period he again manoeuvred to obtain such appointment through political backing and against merit. The learned counsel pressed into service that respondent No.6 was basically a Junior Science Teacher, who was removed from service due to misconduct, however, later on he manoeuvred to obtain order of compulsory retirement due to his political influence, but the same was also a major punishment under disciplinary law. He emphasized that when private respondent No.6 was in service and performing duties as a Junior Science Teacher, he acquired degree of law without obtaining leave from the Education Department by practicing fraud. He pressed into service that the aforesaid private respondent misappropriated huge amount of various projects relating to his native village, however, all the aforesaid documents were not in the notice of the Hon'ble Chief Justices of the Supreme Court and Shariat Court. He argued that it was responsibility of the Government-respondent to inquire about the previous conduct, integrity and credibility of the said respondent, through reliable sources, however, due to his political affiliation, the Government and other official respondents failed to perform their obligations, hence, submitted for acceptance of writ petition. The learned counsel in support of his contentions referred to and relied upon the following case law:- i. Bashir Ahmed Mughal v. Azad Govt. and 6 others (2014 SCR 1258). ii. Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another [PLD 2010 SC 483]. iii. Jammu and Kashmir Tehrik Ammal Party and 11 others v. The Azad State of Jammu and Kashmir and another [PLD 1985 Azad J&K 95]. iv. The Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.) Limited and 59 others [PLD 1994 SC 363]. v. S.P. Gupta and others v. President of India and others [AIR 1982 SC 149]. vi. Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others [PLD 1972 Lahore 316]. vii Industrial Relations Advisors' Association through General Secretary v. Federation of Pakistan through Secretary, Ministry of Labour and Manpower, Islamabad and others [PLD 2010 Karachi 328]. viii. Allah Wasayo v. The State [1999 PCr.LJ 1033 ]. ix. Ramdayal Mirdha v. Nagendra Nath Bain and others [PLD 1960 Dacca 991] x. Syed Mumtaz Hussain Naqvi and 09 others v. Raja Muhammad Farooq Haider Khan and 04 others [2014 SCR 43]. xi. Ghulam Mustafa Mughal v. Azad Govt. and others (1992 MLD 2083).

In case of Bashir Ahmed Mughal, supra, the partial provisions of section 3 of the Azad Jammu and Kashmir Shariat Court Act, 1993, were declared by the apex Court as ultra vires to the Constitution Act, 1974. All appointments made on the basis of the aforesaid section from 1993, were also set at naught, however, the acts done by the Judges of the Shariat Court were declared as valid on the principle of de-facto doctrine. It was held that keeping in view status of the Shariat Court its establishment be made through amendment in the Constitution and if amendment is not immediately practicable for the time being, in that case through subordinate legislation. The concept and scope of independence of judiciary was also highlighted.

In case of Justice Khurshid Anwar Bhinder and others, ibid, it was held by the apex Court of Pakistan that person identified as responsible for non-implementation of the judgment can be punished by the Supreme Court for contempt due to disobedience of its judgment. It was further opined that judgments, to the extent of legal principles settled therein, are judgments in rem, as parties, litigating in respect of matters covered by legal principles enunciated by the Supreme Court, can at best, distinguish the precedent of the Supreme Court but the Courts before which litigation arises cannot disregard the legal principles so enunciated.

In Jammu and Kashmir Tehrik Ammal Party's case, it was held by the apex Court that the impugned legislation if declared inconsistent with the Constitution, would be likely to be struck down, irrespective of the fact whether an action under such legislation was taken or not.

In case of the Collector of Customs, Karachi and others, supra, it was held by the apex Court of Pakistan that except when the National Assembly is in session, the. President under Article 89(1) of the Constitution of the Islamic Republic of Pakistan, 1973, has been empowered upon immediate action to make and promulgate an Ordinance as the circumstances may require. The constitution, however, makes it mandatory that every Ordinance shall be laid before the National Assembly which shall stand repeal at the expiration of four months from the promulgation or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution.

In case of S.P. Gupta and others, ibid, it was held by the Supreme Court of India that under Art. 217(1) of the Constitution of India, 1950, for appointment of a Judge of the High Court, constitutional functionaries to be consulted are the Chief Justice of the concerned High Court, Governor of the State and Chief Justice of India. It was opined that consultation has to be meaningful, purposeful, result oriented and of substance. It was further held that if the person under consideration does not enjoy reputation for honesty and integrity it would be duty of Chief Justice of the High Court not to recommend such person. The concept and scope of independence of judiciary was also highlighted.

In case of Syed Fayyaz Hussain Qadri, ibid, it was held by the Lahore High Court that if the appointments were made under the latter Ordinance, such appointments after the repeal in 1969, ipso facto, came to an end. The repeal of an Act has the necessary consequence of terminating the appointments made under that Act unless such appointments are specifically saved.

In case of Industrial Relations Advisors' Association, the scope and application of Section 6 of General Clauses Act, 1897, was discussed by the Karachi High Court. It was held that where an Act expires by its own force rather than repealed by another piece of legislation, section 6 of General Clauses Act, 1897, was not applicable. It was further held that Article 264 of the constitution was not applicable to the consequences of such repeal.

In case of Allah Wasayo, supra, it was held by the Karachi High Court that wherever a law is repealed and re-enacted, notification issued and appointments made under such repealed law would not lapse and could always be deemed to be treated as issued or made under re-enacted law.

In Ramdayal Mirdha's case, it was held by the Dacca High Court that if a temporary law scheduled to expire at a certain period of time, is repealed before it had actually expired by efflux of time, section 8 of the Bengal General Clauses Act, 1988, would apply to such a repeal in the same manner as it will apply to the repeal of a permanent statute unless the repealing statute shows a contrary intention. Normally, the continuance of proceedings commenced under such a temporary law would only extend up to the date on which the law was due to expire, for the effect of the provisions of clause (e) of section 8 of the Act, is to save and not to add or enact anything new but merely to preserve proceedings so that they might be continued under it by excluding the operation of the repeal.

In case of Syed Mumtaz Hussain Naqvi, ibid, it was held by the apex Court that the President is empowered to promulgate an Ordinance under Section 41 of the Constitution Act, 1974, when Assembly is not in session. Such Ordinance shall have the power of an Act of the Assembly, which shall stand repeal on expiry of four months from its promulgation. It shall be laid before the Assembly within a period of four months and if a resolution before expiration of four months is passed by the Assembly, by which it is disapproved then it shall be repealed. However, the President may withdraw an Ordinance at any time.

In Ghulam Mustafa Mughal's case, it was held by the apex Court that a writ of quo warranto is maintainable against a Judge which does not mean only a Shariat Court Judge but a Judge of the High Court as well.

6. Mr. Abdul Rasheed Abbasi, the learned counsel for official respondents Nos.1 to 4 submitted that judgment of the apex Court dated 25.08.2014, was accepted in letter and spirit which was in fact implemented by issuance of the impugned Ordinance and placing the same before Legislative Assembly in the shape of a draft Bill by the answering respondents. He strenuously argued that at the time of making impugned Ordinance on 01.12.2014 and promulgation on 12.12.2014, there was no session of Assembly, however, a day earlier session of Legislative Assembly never curtailed powers of the President to promulgate Ordinance under section 41 of the Constitution Act, 1974. He further argued that recommendations of Hon'ble Chief Justices of the Supreme Court and Shariat Court are immune from writ jurisdiction, keeping in view the provisions of Section 44(5) of the Constitution Act, 1974. The learned counsel pressed into service that appointment's notification of even low integrity persons, issued on recommendations of both the Hon'ble Chief Justices, cannot be assailed through writ jurisdiction. He maintained that through the instant writ petition, the petitioners desire to obtain review of the aforesaid recommendations, which is not permissible under law. The learned counsel emphasized that appointments of private respondents Nos.5 and 6 after repeal of the aforesaid Ordinance have been protected under Section 56-C of the Constitution Act, 1974. The learned counsel in support of his contentions referred to and relied upon the following case law:- i. Federation of Pakistan and others v. M. Nawaz Khokhar and others [PLD 2000 SC 26]. ii. The State of Orissa v. Bhupendra Kumar Bose and others [AIR 1962 SC 945]. iii. Fazal Dad v. Khadim Hussain and another [1995 MLD 1299].

In case of Federation of Pakistan and others, supra, it was held by the apex Court of Pakistan that Ehtesab Ordinance of 1996, promulgated on 18.11.1996, was no doubt enforced on 01.02.1997, when the same was promulgated. However, Ordinance was thrice amended between the period from 31.12.1996 to 27.01.1997 before it was repealed and replaced by Ordinance XX of 1997. On 01.02.1997, when Ordinance XX of 1997 was promulgated the National Assembly stood dissolved and general elections in the country were called on 03.02.1997 and therefore, it would have taken some time for the National Assembly to come into existence. In these circumstances the promulgation of Ordinance XX of 1997 to repeal and replace Ordinance CXI of 1996 as amended by Ordinance CXXIII of 1996, Ordinance VII of 1997 and Ordinance XI of 1997, could not be described as arbitrary or improper exercise of powers vested in the President under Article 89 of the Constitution of 1973.

In case of The State of Orissa, ibid, it was held by the Supreme Court of India that having regard to the object of the Ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired, the validity of the elections came to an end and their invalidity was revived. The rights created by the Ordinance must be held to endure and last even after the expiry of the Ordinance. The Ordinance has in terms provided that the Order of the Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held and the life of the newly elected Municipality would be governed by the relevant provisions of the General Clauses Act, 1897 and would not come to an end as soon as the Ordinance expires.

In case of Fazal Dad, ibid, it was held by the apex Court that accrued right is not destroyed but is protected and change of law does not affect such right in any way. It was further held that legal proceedings would continue as if law had not been repealed.

7. M/s. Kh. Attaullah Chak, Raja Ibrar Hussain Khan and Bilqees Rasheed Minhas, Advocates re-presenting private respondents Nos.5 and 6 have filed written submissions. It is maintained that as petitioners failed to append certified copies of the impugned notification and documents, therefore, writ petition is hit by rule 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. In this regard reliance is placed on the following case law:- i. Sardar Farooq Ahmed Khan and 2 others v. Azad Govt. and 3 others (2002 SCR 14). ii. An unreported judgment of the apex Court titled Iffat Bibi v. AJK Government, (Civil Appeal No.6/2012) decided on 13.05.2014 and iii. Another unreported judgment of the apex Court titled Kamran Hafeez v. Gul Zaman and others (Civil Appeals Nos.255 and 256) decided on 28.05.2014.

In the aforesaid thrice cases, the apex Court held that without appending certified copies of the impugned orders/notifications, the writ petitions before the High Court were not valid.

The learned counsel for private respondents further submitted that affidavits appended alongwith writ petition were attested by Ch. Zafar Mehmood, Advocate, Muzaffarabad, whose license of Oath Commissioner was for 03 years which was expired on 17.06.2009, hence, he was no more Oath Commissioner at the time of attestation of the said affidavits in the year 2015. It is stated that as supported affidavits of writ petition were not sworn in accordance with Rules 88, 89 and 90 of the High Court Procedure Rules, 1984, hence, writ petition is accordingly bad in law. In this regard reliance has been placed on an unreported judgment of the apex Court titled Ch. Muhammad Aziz v. Faisal Mumtaz Rathore (Civil Appeal No. 241/2013) decided on 13.02.2015.

In case supra, it was held by the apex Court that provisions of section 139 Civil Procedure Code, 1908, section 7 of the Oaths Act, 1873, and provisions of Rules 88, 89 and 90 of the High Court Procedure Rules, 1984, make it mandatory that verification shall have to be made strictly in accordance with Order VI, Rule 15 and to be attested by a person authorized in this behalf as referred in section 139 of Civil Procedure Code.

The learned counsel for private respondents repeated arguments of the learned counsel for official respondents Nos.1 to 4 on two points i.e. that as appointment's notification of answering respondents dated 27.03.2015, was issued after consultation of the Hon'ble Chief Justices of the Supreme Court and Shariat Court, hence, writ petition is not maintainable due to bar contained under section 44(5) and the same has been protected under section 56-c of the Constitution Act, 1974. The learned counsel, however, further added that first Ordinance XVII of 2014, on the subject was made on 21.11.2014 and the same was repealed through the impugned Ordinance XVIII of 2014, which was made on 01.12.2014 and published on 12.12.2014. It is maintained that the impugned Ordinance, was laid before the Legislative Assembly on 09.12.2014 and the same was transmitted to select committee on 10.12.2014, however, session of Assembly was adjourned sine die on 11.12.2014. It is also submitted that the impugned Ordinance was introduced as a Bill in the Assembly before its promulgation on 12.12.2014, which shall not disqualify the President so as to record a satisfaction with respect to circumstances that exists for promulgation of an Ordinance, which was prerogative of the President and the same cannot be inquired into while exercising the powers of judicial review, therefore, writ petition is not maintainable. In this respect reliance has been placed on the following case law:- i. Abrar Hassan v. Government of Pakistan and another [PLD 1976 SC 315]. ii. Abdul Raheem Zubair Butt v. Azad Jammu and Kashmir High Court and 07 others [2003 PLC (C.S.) 664]. iii. Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others [PLD 1997 SC 11]. iv. Fouji Foundation and another v. Shamimur Rehman [PLD 1983 SC 457]. v. Muhammad Rafique v. Federation of Pakistan through Secretary Law Justice and Human Rights Division, Islamabad and another [PLD 2005 Lahore 150]. vi. Haran Chandra Dutt and another v. The State of West Bengal and others [AIR 1952 Kolkata 907]. vii. T. Venkata Reddy etc. v. State of Andhra Pradesh [AIR 1985 SC 724]. viii. Mir Laik Ali v. Standard Vacuum Oil Company (ESSO) and another [PLD 1964 SC 220]. ix. Mst. Siddiqan Afzal v. Assistant Collector of Central Excise and Land Customs, Faisalabad and 2 others [PLD 2001 Lahore 78]. x. Idrees Ahmed and others v. Hafiz Fida Ahmad Khan and 4 others [PLD 1985 SC 376].

In case of Abrar Hassan, supra, it was, inter-alia, held by two out of four Hon'ble Judges of the Supreme Court of Pakistan, while interpreting the corresponding provisions in the Constitution of Pakistan, in a divided judgment that writ petition filed by appellant to question the validity of the second respondent's appointment as Chief Justice of the Sindh and Balochistan High Court did not lie under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

In case of Abdul Raheem Zubair Butt, ibid, it was held by the apex Court that section 44(5) specifically excludes the High Court and Supreme Court from word "person". It was observed that if practice is allowed the Judges of Superior Courts may start passing orders against each other which will create anarchy in the State.

In case of Mehr Zulfiqar Ali Babu and others, supra, it was held by the apex Court of Pakistan that no ambiguity or conflict can be found in Section 2 of Punjab Local Government (Repeal) Act, 1996. Where there was no ambiguity or conflict in the enactment, reference to Assembly debate or any other material to know the intention of the Legislature was not necessary.

In Fouji Foundation and another's case, it was held by the apex Court of Pakistan, that purpose of judicial review is corrective or directory and extends to determine legality of administrative action. It was opined that judicial review does not extend prying into affairs of Legislature and Courts shall refrain from exerting inquiry into motives of legislation. Inquiry involving proof, being outside scope of judicial review, no presumption can thus be drawn as to fact such as malice. It was opined that ordinarily mala-fide cannot be attributed to the Ordinance. No adverse inference can be drawn on matter exclusively pertaining to legislative field for determination of which judicial power could not be exerted.

In case of Muhammad Rafique, ibid, it was held by the Lahore High Court that the President is sole Judge pertaining to existence of circumstances rendering it necessary to take immediate action and promulgate Ordinance under Art. 89 of the Constitution, 1973.

In case of Haran Chandra Dutt and another, supra, it was held by the Calcutta High Court that the Legislative power conferred on the Governor under section 88 of the Constitution of India, is very wide and the Ordinance passed is as effective as an enactment of the Provincial Legislative. It was observed that there is no restriction put on this legislative power except as to its duration.

In case of T. Venkata Reddy, ibid, it was held by the apex Court of India that it cannot be said that on the failure of the State Legislature to pass an Act in terms of the Ordinance it should be assumed that the Ordinance had never become effective and that it was void ab initio and the posts of part-time village officers, which were abolished by the Ordinance revived, as the Ordinance was not replaced by an Act of the Legislature of the State.

In case of Mir Laik Ali, supra, it was held by the apex Court of Pakistan that amendment introduced by the Code of Civil Procedure (Amendment) Ordinance (XLIV of 1962) which was repealed by the Code of Civil Procedure (Amendment) Act (III of 1963), hence, the repealed amendment was to be ignored by declaring that the appeal should have been decided in accordance with un-amended provisions of the Civil Procedure Code.

In case of Mst. Siddiqan Afzal, ibid, it was held by the Lahore High Court that the effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law.

In case of Idrees Ahmed and others, supra, it was held by the apex Court of Pakistan that when an Act of Parliament is repealed it must be considered, (except as to transactions past and closed) as if it had never existed. The effect of repealing a statute is to obliterate it as completely from the records of Parliament as if it had never been passed.

The learned counsel for private respondents also added that writ of quo warranto is discretionary, which is require to be exercised judiciously and while exercising writ jurisdiction the Court would be competent to test bonafide of the relators. In this regard reliance has been placed upon Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299).

In case supra, it was held by the apex Court of Pakistan that under Article 199 of the Constitution all the reliefs obtainable under it are purely discretionary and on the principles governing writ of quo warranto the relief under Art.199(1)(b)(ii) is particularly so, therefore, writ of quo warranto is not issued as a matter of course. The Court can and will enquire into the conduct and motive of the relator. However, no precise rule can be laid down for the exercise of discretion by the Court in granting or refusing an information in the nature of quo warranto.

8. The learned counsel for private respondents also relied upon various authorities, out of which some were not found at the relevant pages and a few were irrelevant, hence, the same are not discussed here.

9. After hearing the learned counsel for petitioners, official respondents and examining written arguments of the learned counsel for private respondents, we have considered the submissions made by the learned counsel and have also gone through the record as well as extensive case law cited at Bar.

10. As respondents have raised certain preliminary objections against maintainability of writ petition, therefore, firstly we advert to resolve the same.

11. The first preliminary objection raised by the learned counsel for private respondents Nos.5 and 6 is that petitioners failed to append certified copies of the impugned Ordinance dated 01.12.2014, notification dated 27.03.2015 and other documents, therefore, writ petition is hit by sub-rule (2) of Rule 32 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, which reads as under:-

"32.(1) ..

(2) The application shall set out the name and description of the applicant, the exact nature of the relief sought and the ground on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexures if any, in addition to separate copy for each one of the respondents. The annexures accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall be properly indexed." (Underlining is ours)

It may be observed here that as per Rule 32(2) supra production of certified copy of the impugned order is requirement of law and not the other documents. A perusal of paragraph No.8 of writ petition, however, reveals that petitioners specifically pleaded that through application they requested to the concerned authorities for issuance of certified copies of the relevant record, however, due to influence of private respondents, they refused to issue the same, hence, petitioners prayed for dispensation of Rule 32 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. The contents of the aforesaid para are duly supported by a separate, affidavit sworn by petitioner No.1, Sardar Javed Naz, Advocate Supreme Court. The aforesaid paragraph was although denied by official respondents Nos.1 to 4 through written statement dated 20.05.2015. However, the concerned respondent failed to file counter affidavit that petitioners never applied for certified copies of the impugned Ordinance and notification. The petitioners also placed on record a facsimile of an application addressed to Secretary Law, Justice, Parliamentary Affairs and Human Rights Department, dated 22.04.2015, which was received in the concerned Department vide No.4489 on 22.04.2015. Through the aforesaid application, petitioner No.1 solicited certified copies of the impugned notification dated 27.03.2015, amended Ordinance of Shariat Court, 2014 and notification dated 13.02.2015. It appears that later on Law, Justice, Parliamentary Affairs and Human Rights Department, issued certified copies of the impugned notification dated 27.03.2015 and another notification dated 28.03.2015, which were also placed on record through application dated 05.05.2015. It further reflects from record that despite the aforesaid application certified copy of the impugned Ordinance, due to its promulgation through extra ordinary Gazette, was not issued to petitioners. It is settled principle of law that in writ jurisdiction all questions arising for determination shall be decided ordinarily upon affidavits, unless the Court direct otherwise, as per rule 38 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. The aforesaid proposition came under consideration before the apex Court in case titled Muhammad Ajaib v. Public Service Commission and 03 others 1997 PLC (C.S.) 222 at page 230 wherein of the report, it was opined as follows:-

"Public Service Commission was one of the respondents before the High Court. If a citizen files a writ petition against a functionary and alleges an illegality the respondent cannot be given protection by the High Court if it refuses to issue certified copies, if those are demanded. The learned counsel for appellant has rightly relied on rule 38 of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984 and we agree with his elucidation that where it appears to the High Court that it is just it may direct that question falling for determination in a writ petition may be proved by such other evidence and in such manner the High Court may consider fit. The observation made in the judgment under appeal that only un-disputed pleaded facts are to be taken into consideration in a writ petition cannot be approved."

A similar proposition came under consideration before the apex Court of Pakistan in case titled Islamic Republic of Pakistan through the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Amjad Ali Mirza (PLD 1977 SC 182). At page 187 of the precedent case, it was held as follows:-

"Before coming to the merits of the case, it is necessary to dispose of two preliminary objections raised on behalf of the respondent on points of abatement and limitation. During the pendency of the appeal, the respondent died on 11.01.1972. An application for bringing on record his legal representatives was filed on 16.05.1972 i.e. about a month beyond limitation. Since no counter affidavit has been placed on record to controvert the ground for condonation of delay, this alone should be good enough to justify the setting aside of the abatement of appeal and I hold accordingly."

The Secretary Law, Justice, Parliamentary Affairs and Human Rights or none of the official of Law Department, controverted duly sworn affidavit of petitioner No.1, Sardar Javed Naz, Advocate, by counter affidavit, therefore, it is held that as concerned respondent No.2 failed to issue certified copies of the impugned Ordinance dated 01.12.2014 and notification dated 27.03.2015, in spite demanded through application dated 22.04.2015, prior five days of filing writ petition, therefore, requirement of sub-rule (2) of Rule 32 of the High Court Procedure Rules, 1984, is dispensed with and preliminary objection is overruled.

12. The next preliminary objection raised by the learned counsel for private respondents is that affidavits appended along with writ petition were attested by Ch. Zaffar Mehmood, Advocate, whose license of Oath Commissioner was for three years which was expired on 17.06.2009, hence, was not an Oath Commissioner, when he attested the affidavits on 27.04.2015. It is craved that as the affidavits were not sworn in accordance with provisions of Rules 88, 89 and 90 of the High Court Procedure Rules, 1984, therefore, writ petition is not maintainable. A perusal of record reveals that along with writ petition, petitioner No.1, Sardar Javed Naz, Advocate, filed three affidavits one in support of writ petition, another in support of para 8 of petitions relating to non-issuance of certified copies of the impugned orders and third in support of an ad-interim application, which were duly attested by Ch. Zaffar Mehmood, Oath Commissioner, Muzaffarabad, vide Nos.421, 422 and 423 dated 27.04.2015. However, it appears that at later stage when petitioners apprised that at the time of attestation, there was no extension pertaining to license of Oath Commissioner of the concerned Advocate, they through an application supported by an affidavit dated 15.05.2015, also brought on record duly attested affidavits of Advocates possessing valid licenses of Oath Commissioners. The contents of the affidavits are same which were filed along with the writ petition. The aforesaid application has been opposed by the private respondents through preliminary objection (F) of their written statement dated 20.05.2015. As petitioners when apprised that the learned Advocate who attested the affidavits was not possessing license of an Oath Commissioner, they replaced duly sworn affidavits, therefore, irregularity, if any, was cured. Even otherwise as per section 13 of the Oaths Act, 1873, omission to take any oath or make any affirmation and no irregularity whatever shall invalidate any proceeding which section is reproduced as under:-

"13. Proceedings and evidence not invalidated by omission of oath or irregularity.--- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."

The similar point regarding irregularity of an affidavit came under consideration before the Karachi High Court in case titled Muslim Commercial Bank Limited v. Asghar Bros and others (1991 CLC 1912), wherein at page 1916 of the report, it was held as under:-

"No doubt in the case relied upon by the learned counsel for the respondent it was held that a defective affidavit could not be relied upon as evidence, as is evident from the observations just reproduced by me above but in this case the learned Judge was also impressed by the fact that even otherwise the case of the appellant was weak on merits. The question which requires determination in the present appeals is whether the learned Controller was justified in dismissing the eviction applications purely on this technical ground. No doubt, the learned Controller has referred to Rule 62 of Sindh Chief Court Rules which states that "an affidavit not sworn or affirmed in the manner hereinbefore provided shall not be used in evidence," but it is pertinent to mark that Rule 62 does not state that the entire proceedings would be rendered invalid for such reasons. The answer, in my opinion, is provided by Section 13 of the Oaths Act reference to which has Rather been made by me in this judgment."

The same proposition came under consideration before the Quetta High Court in case titled Dr. Fazalur Rehman and 3 others v. Malik Ghulam Muhammad and others (1986 CLC 518). At page 526 of the report, it was opined as follows:-

"As regards the contention of learned counsel for the petitioners that the respondents Nos.4 and 5 were not administered Oath, it may be observed that he had referred to the statements on record which indicate that the words 'solemn affirmation' have not been written. The Tribunal might not have written the above words on account of omission, but even if it is to be held, that factually, the above witnesses were not administered Oath, the above, irregularity will not vitiate the entire trial. The same is curable under section 13 of the Oaths Act, 1873 which, provides that no omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which anyone of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."

The application is, therefore, allowed and the aforesaid preliminary objection which is devoid of force, is hereby turned down. The unreported judgment of the apex Court titled Ch. Abdul Aziz v. Faisal Mumtaz Rathore (Civil Appeal No.241/2013) decided on 13.02.2015, relied upon by the learned counsel for private respondents, is distinguishable and having no nexus with the instant case.

13. The last preliminary objection raised by the learned counsel for respondents is that as private respondents Nos.5 and 6 were appointed as Judges of the Shariat Court on recommendations of the Hon'ble Chief Justice of the Azad Jammu and Kashmir and Hon'ble Chief Justice of Shariat Court, therefore, neither the aforesaid recommendations nor appointment's notification of the said respondents can be challenged through writ jurisdiction due to bar contained under subsection (5) of section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. Before embarking upon the aforesaid objection, it seems appropriate to reproduce the relevant provisions of section 44, which speaks as follows:-

"44. Jurisdiction of High Court:- (1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.

(2) Subject to this Act, the High Court [may] if it is satisfied that no other adequate remedy is provided by law.

(a) on the application of any aggrieved party, make an order:-

(i)

(ii)

(b) on the application of any person, make an order:-

(i) directing that a person in custody in Azad Jammu and Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.

(ii) requiring a person holding or purporting to hold a public office [in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold that office; or.

(c)

(3)

(4)

(a)

(b)

(5) In this section, unless the context otherwise requires , 'person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services."

The term Shariat Court has been defined under section 3(1) of the Azad Jammu and Kashmir Shariat Court Act, 1993, which reads as under:--

"3. The Azad Jammu and Kashmir Shariat Court.--- (1) There shall be constituted for the purposes of this Act a Court to be called the Azad Jammu and Kashmir Shariat Court."

The Supreme Court of Azad Jammu and Kashmir has been enshrined under section 42(1) of the Interim Constitution Act, 1974, which is reproduced herein below:-

[42. Supreme Court of Azad Jammu and Kashmir.- (1) There shall be constituted a Supreme Court of Azad Jammu and Kashmir to be the highest Court of appeal."

Similarly the High Court of Azad Jammu and Kashmir has been defined under section 43(1) of the Interim Constitution Act, 1974, which speaks as follows:-

43. High Court.--- (1) There shall be a High Court for Azad Jammu and Kashmir, hereinafter called the High Court, which shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Assembly."

A bare reading of the aforesaid subsection (5) makes it abundantly clear that 'person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or Tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services. However, as under subsection (5) supra, the Shariat Court has not been included, therefore, lengthy arguments advanced by the learned counsel for respondents, as per our humble view, hardly need any deliberation in view of the aforesaid clear provisions of law.

14. Even otherwise the argument advanced by the learned counsel for respondents that appointment's notification of the incumbent Judges cannot be looked into through judicial review as per bar contained under subsection (5) of section 44 of the Interim Constitution Act, 1974, is against the celebrated principle of Jurisprudence that where there is a wrong there is a remedy. The aforesaid proposition pertaining to appointment of Judge of the High Court and filing writ against such appointment with reference to subsection (5) ibid, however, came under consideration before the apex Court in case titled Ghulam Mustafa Mughal v. The Azad Government and others (1992 MLD 2083) At page 2100 of the report, it was held as follows:-

"This judgment was not brought to the notice of the learned Judges in the High Court otherwise the learned Judges in all probability would have followed it. I say so with great respect that this judgment lays down the correct law. It contains a view which is totally different from expressed by Yaqub Ali, C.J. in Abrar Hussan's case that instead of having recourse to writ of quo-warranto the proper course in such a situation is to challenge the judgment delivered by a Judge on the ground that it was not a judgment of a High Court or on the ground that the High Court is not properly constituted because a judgeship is vacant. In my considered opinion the view expressed by Muhammad Gul, J. and Salah-ud-Din, J. was the correct view. If an order or judgment of a Judge of High Court is challenged there can be no two views that what is being sought is a writ against the High Court because the order or judgment has been pronounced in exercise of the jurisdiction vested in the High Court and it is a situation in which Judge and the Court are inseparable. However, if appointment of a Judge of the High Court is challenged by way of a writ of quo-warranto what is in fact under challenge is the appointment of the Judge which is made not by the High Court or the Supreme Court but by the President. Therefore what has to be examined by the High Court is in fact the action of an authority outside the Courts and no order of Court is under challenge.

On the question of maintainability of a quo-warranto against a Judge, a judgment of this Court is already in existence. The judgment which is reported as 'Amjad Hussain v. Ghulam Rasool Mir (1991 PCr.LJ 685), was cited before the High Court. But it was found to be distinguishable in paragraphs 35 and 36 which are reproduced below:-

"35. The learned counsel for the petitioners referred an unreported judgment of the Supreme Court of Azad Jammu and Kashmir titled "Amjad Hussain and others v. Ghulam Rasool Mir and others: in support of the proposition that the appointment of a Judge is open to challenge by seeking a writ of quo-warranto and not raising an objection by a party in private litigation. This authority is distinguishable on facts and laws because in this case the appointment of respondent No.5 as Additional Judge of the Shariat Court was challenged in the ground that before his appointment as Additional Judge of the Shariat Court, the Chief Justice of the Shariat Court was not consulted. In the light of these facts, the learned Supreme Court of Azad Jammu and Kashmir held that the appointment of the Judge can be questioned through a writ of quo-warranto. The relevant parts of Section 44 alongwith sub-clause (5) of the Act are reproduced below:-

"36. As is apparent from sub-clause (5) of section 44 of the Act, the Shariat Court has not been excluded from term 'person'. It was, in these circumstances, that the learned Supreme Court observed that the appointment of a Judge of the Shariat Court can be called in question through a writ of quo-warranto. The learned counsel for the parties referred some other authorities during the course of their arguments. As these authorities are distinguishable both on facts and law, therefore, we refrain from quoting them in this order."

It is true that in Amjad Hussain's case the appointment of the Judge of the Shariat Court was in dispute but, I say so with great respect, it is not true that the judgment of this Court was distinguishable on facts or law. In that judgment it was clearly held that "de facto doctrine" was applicable and in doing so we did not create any distinction between Judge of the Shariat Court and Judge of the High Court. It is true that the Judge whose appointment had been challenged collaterally was a Judge of Shariat Court and not of a High Court, but a perusal of the judgment would show that the cases which were considered by this Court to reach the conclusion were not judges of Shariat Court. The following passage from the judgment written by Sardar Said Muhammad Khan, C.J. is instructive:-

"It is amply clear that the law on the question in dispute is settled that a judgment or order passed by the facto Judge cannot be set aside on the ground that the appointment of a Judge was violative of law. The view rests upon the doctrine of necessity and public policy. If the parties are permitted to raise the aforesaid objection in private litigation, it would cause embarrassment to the Judge and open the door to attack the authority of the Judge in private proceedings to which the concerned Judge is not a party and no opportunity to defend him is given, the appointment of a Judge is open to challenge by seeking a writ of quo warranto and not by raising an objection by a party in private litigation. This view is not only followed by the superior Courts of Pakistan and India but also the Courts in United States of America and United Kingdom".

It is thus clear from the paragraph quoted above that it was clearly laid down that the appointment of a Judge cannot be challenged collaterally and in such a situation only a writ of quo-wrranto would lie. I may observe that India, United Kingdom and United States of America have been mentioned and none of them have any Shariat Court. Even an obiter dicta of this Court has a binding effect and I say so with great respect to the learned Judges of the High Court, that the reasons which led them to the conclusion that Amjad Hussain's case was distinguishable are not sustainable in view of the clear statement of law in the passage quoted above that a quo-warranto writ is maintainable against a Judge which does not mean only a Shariat Court Judge. This reason alone is sufficient to show that the order of dismissal of the writ petition cannot be maintained.

In view of the foregoing discussion I am of the view that the appeal titled "Mr. Ghulam Mustafa Mughal and another v. Muhammad Siddique Farooqi and others" has to be accepted and I order accordingly. Consequently writ petition titled "Ghulam Mustafa Mughal and another Vs. Azad Jammu and Kashmir Government and others" shall stand accepted and writ of quo-warranto would issue to the effect that Sardar Muhammad Sajawal Khan and Mr. Muhammad Siddique Farooqi were occupying the public office as Additional Judges of the High Court without authority of law."

The same view was reiterated by the apex Court in case titled Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate, Muzaffarabad and others (PLD 2012 SC (AJK) 42). At page 62 of the precedent case, it was opined as under:-

"Objection to the maintainability of writ petition has been raised on the strength of subsection (5) of section 44 of the Act, 1974 which is reproduced as under:--

"(5) In this section, unless the context otherwise requires, 'person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services. "

While relying upon the provision, it was argued that the Supreme Court and the High Court Judges are not included in the definition of 'person' therefore, the writ petition was not maintainable. The language of section 44(5) of the Act, 1974 and Article 199(5) of the Constitution of 1973 is similar. Clause (5) of Article 199 of the Constitution of 1973 is reproduced as under:

"(5) In this Article, unless the context otherwise requires---

`person' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government and any Court or tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and 'prescribed law officer' means

(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and

(b) in any other case, the Advocate General for the Province in which the application is made."

25. A comparison of both the provisions would show that same wording has been employed in the Act, 1974 which is used in clause 5 of Article 199 of the Constitution of 1973. The writ petition has not been filed against the High Court or a judgment of the High Court, rather it has been filed against a notification issued by the President/Executive being against the provisions of the Act, 1974."

At page 68 of the precedent case, it was further held as under:-

"In the light of the enunciation made by this Court and the Supreme Court of Pakistan in the above referred cases, it is held that the executive orders can be challenged in the writ petition and the writ of quo warranto was competently filed and section 42-E of the Act, 1974 is no bar in filing the writ petition."

15. The learned counsel for respondents while relying upon Abrar Hassan's case [PLD 1976 SC 315], time and again emphasized that neither consultation of the Hon'ble Chief Justices nor appointment's notification of private respondents against the posts of Judges Shariat Court can be challenged on the basis of ratio laid down by the apex Court of Pakistan in case supra. The aforesaid precedent case was heard by a four members Full Bench of the Hon'ble Supreme Court of Pakistan. As per view of Mr. Justice Muhammad Yaqub Ali, C.J. and Mr. Justice Anwar-ul-Haq, J. (As their lordships then were) "High Court" and "Judge High Court" were interchangeable terms, hence they held that writ of quo-warranto did not lie against the Judge of the High Court. However, in the same judgment other two Judges Mr. Justice Muhammad Gul, J. and Mr. Justice Salah-ud-Din, J., (as their lordships then were) differed with this view and held that a writ of quo-warranto could be issued against a Judge of the High Court if his appointment was found illegal. The view of Mr. Justice Yaqub Ali, J. and Mr. Justice Anwar-ul-Haq, J., however, was overruled by Full Bench judgment consisting of eight members Bench in case titled Mr. Zulfikar Ali Bhutto v. The State and another [1977 SCMR 514]. At page 517 of the report, it was held as follows:-

"It will be seen that the question relating to the constitution of the Lahore High Court and the capacity of the learned Acting Chief Justice to act as such are indeed matters more appropriate for consideration by way of quo-warranto, rather than by way of a petition for special leave to appeal under Article 185 of the Constitution. In any case, it is also clear to us that they must be raised before the Full Bench concerned in the first instance, so that this Court has the benefit of the opinion of the Judges concerned as to their capacity to act in the matter. Consisting, as it does, of five Judges of the High Court, the Full Bench is obviously competent to determine all questions having a bearing on its own capacity or validity to act in the case or cases pending against the petitioner. The appellate jurisdiction of this Court would be attracted only when an adverse order is made against the petitioner by the High Court in appropriate proceedings."

16. Likewise the point pertaining to importance of 'consultation' came under consideration before the august Supreme Court of Pakistan in case titled Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324). The apex Court while interpreting pari materia provisions of Articles 177 and 199 of the Constitution of the Islamic Republic of Pakistan, 1973, held that the consultation should be effective, meaningful, purposive, consensus, leaving no room for complaint of arbitrariness or unfair play and we respectfully follow the same.

17. We are, therefore, not impressed from argument of the learned counsel for respondents that appointment's notification of private respondents cannot be challenged at every cost due to bar contained under subsection (5) of section 44 of the Constitution Act. For instance, if an Advocate recommended for appointment as a Judge of the High Court, however, later on it transpires that before enrolment as an Advocate he was dismissed or removed from service of Government or of a public Statutory Corporation or on a charge involving moral turpitude, from service. A dismissed or removed person cannot obtain license of Advocacy for a fixed period as per clause (i) of subsection (2) of Section 24 of the Azad Jammu and Kashmir Legal Practitioners and Bar Council Act, 1995. The record of his dismissal from service was neither in the notice of the Bar Council nor of the Hon'ble Chief Justices. The question is that when the aforesaid fact came into the notice of the Bar Council, the same cannot recall license of Advocacy obtained by fraud of such like person. The answer is affirmative that on the said ground not only license of Advocacy can be recalled by the Bar Council but on the basis of the same the appointment notification can be challenged through writ jurisdiction as preponderance of judicial authority is in favour of conceding such a power to every authority/ tribunal or Court on the general principle that fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his fraud.

18. The issue pertaining to appointment of a Judge who is hall-mark of honesty and integrity was considered by the apex Court of India in a lengthy judgment of S.P. Gupta and others v. President of India and others (AIR 1982 SC 149). We cannot do better than to usefully reproduce in this regard paragraph 89 of the precedent case which is as follows:-

"89. We might also at this stage refer to one contention seriously pressed on behalf of the petitioners, namely, that what would be material to consider for the purpose of assessing the suitability of an additional Judge for further appointment would be not whether the additional Judge enjoys good reputation for honesty and integrity but whether in fact he possess honesty and integrity. The argument of the petitioners was that if the additional Judge has the hall mark of honesty and integrity "he cannot be removed or dropped because unconfirmed reports say that he is lacking in honesty and integrity", for otherwise "the reputation of every Judge would be at the mercy of rumours, gossips and unconfirmed reports". We do not think this argument is well founded. In the first place, it must be remembered that when the Chief Justice of the High Court is called upon to give his opinion in regard to the suitability of an additional Judge for further appointment, he is not required to adjudicate upon various maters bearing upon his suitability and to come to a definitive finding or conclusion in regard to such matters. Where the complaint against an additional Judge is in regard to his integrity, the Chief Justice of the High Court is not expected to hold a judicial or quasi-judicial inquiry for the purpose of adjudicating whether the additional Judge is, in fact, lacking in honesty and integrity. Such an inquiry against a Judge whether additional or permanent would not be permissible except in a proceeding for his removal. What the Chief Justice of the High Court has to do is merely to assess the suitability of the additional Judge for further appointment and where lack of integrity is alleged against him, the assessment can only be on the basis of his reputation for integrity. The point we are making will become abundantly clear if we take the case of a member of the bar or the senior most District Judge who is for the first time considered for appointment as an additional or permanent Judge. The integrity of the person under consideration would undoubtedly be a relevant factor to be taken into account, but in assessing such factor the Chief Justice of the High Court would not be expected to hold a judicial or quasi-judicial inquiry for the purpose of determining whether the person concerned does, in fact possess honesty and integrity or is lacking in these qualities. The Chief Justice of the High Court would have to proceed on the basis of the reputation for honesty and integrity enjoyed by the person under consideration and if on the basis of the information gathered by him, the Chief Justice of the High Court comes to the view that such person does not enjoy good reputation for integrity, the Chief Justice of the High Court would be justified in not recommending such person for appointment. Where a question of honesty and integrity of a Judge is concerned, it is almost impossible to come to a conclusive determination whether he is lacking in integrity or not, because experience shows that most persons are not willing to speak if they know that they may be quoted and that in any event they are not prepared to testify in any judicial or quasi-judicial inquiry. It is therefore, not enough in order to be able to recommend a person for appointment as a Judge to say that there is no proof of lack of integrity against him, because, if such were the test to be applied, there would be grave danger of persons lacking in integrity being appointed as Judges. The test which must be applied for the purpose of assessing the suitability of a person for appointment as a Judge must be whether the Chief Justice of the High Court or for the matter of that, any other constitutional authority concerned in the appointment, is satisfied about the integrity of person under consideration. If the person under consideration does not enjoy reputation for honesty and integrity, it would not be possible for the Chief Justice of the High Court to say that he is satisfied about the integrity of such person and in such an event, the Chief Justice of the High Court would be justified in not recommending such person for appointment in fact, it would be his duty not to recommend such person. The public injury which may be caused by appointment of a Judge lacking in integrity would be infinitely more than the public injury which may result from non-appointment of a competent Judge possessing integrity. If therefore the Chief Justice of Delhi found on inquiries made by him that some of the complaints made against S.N. Kumar were not without basis and doubts about the integrity of S.N. Kumar were expressed by responsible members of the Bar as also by some of his own colleagues, the Chief Justice of Dehli could not be said to be unjustified in writing the letter dated 19th February, 1981 declining to recommend S.N. Kumar for appointment as an additional Judge for a further term. We may once again repeat that this assessment of S.N. Kumar by the Chief Justice of Delhi may have been erroneous and, as we shall point out a little later the Chief Justice of India took the view that it was erroneous, but on no account can lack of bona fides be attributed to the Chief Justice of Delhi. On the bona fide view taken by him, the Chief Justice of Delhi did what it was his plainest duty in the circumstances to do."

We, after survey of the aforesaid case law and deep deliberation, have reached to the conclusion that the last preliminary objection raised by the learned counsel for respondents is also baseless and it is safely held that writ of quo warranto against a Judge of the Superior Courts is maintainable under section 44 of the Interim Constitution Act, 1974.

19. After resolving preliminary objections now we turn to merits of the case. The petitioners are members of legal fraternity who are Advocates of the Supreme Court and they have challenged vires of the impugned Ordinance XVIII of 2014 dated 01.12.2014, promulgated on 12.12.2014, along with notification dated 27.03.2015, whereby private respondents Nos.5 and 6 were appointed against the posts of Judges Shariat Court as ultra-vires to the Constitution, non-transparent, without merit, contrary to spirit of independence of judiciary and violative of judgments of the apex Court in Muhammad Younas Tahir's case reported as [PLD 2012 SC AJK 42] and Bashir Ahmed Mughal's case reported as [2014 SCR 1258]. It may be observed here that previously incumbent Judge respondent No.5, Sardar Muhammad Shehzad Khan and Ch. Muhammad Mushtaq, Advocate, Mirpur, were appointed against the posts of Judges Shariat Court, vide notification dated 15.11.2012, without consultation of Hon'ble Chief Justices of Azad Jammu and Kashmir and Shariat Court, therefore, Writ Petition No.373/2013 titled Sadaqat Hussain Raja v. Azad Govt. and 6 others was filed, whereby vires of section 3 of the Azad Jammu and Kashmir Shariat Court Act, 1993 and appointment's notification supra were challenged on the grounds as being political motivated, based upon favoritism, nepotism, sweet will of high-ups of the State and against the scheme of Constitution. The captioned writ petition was clubbed with another Writ petition No.752/2009, which was filed by Bashir Ahmed Mughal and others District and Sessions Judges, through which they called in question the procedure for appointment and removal of Judges of the Shariat Court alongwith vires of Shariat Court Act, 1993, on various grounds. Both the writ petitions were consolidated and placed before a three members Full Bench of this Court consisting of Mr. Justice Sardar Abdul Hameed Khan, J. and two of us (Justice Ch. Jahandad Khan and Justice Azhar Saleem Babar, JJ.) The aforesaid writ petitions were dismissed through majority judgment by Mr. Justice Sardar Abdul Hameed Khan, J. and one of us (Justice Ch. Jahandad Khan, J.), however, the same were accepted by Justice Azhar Saleem Babar, J. through minority view vide judgment dated 04.12.2013. The mode of appointments of the aforesaid respondent No.5 and Chaudhry Muhammad Mushtaq, was discussed in minority judgment supra and it will be useful to reproduce paragraphs 40 and 41 of the said judgment as under:-

"40. There is yet another aspect of the matter that mode of appointment of a Judge of the Shariat Court is not transparent. In order to visit the procedure adopted for appointments of the incumbent Judges of the Shariat Court, record was sent for from the Law Department. It is astonishing to observe that Law Department is not in possession of original record of appointment of the Judges and mere photocopies of some documents are present on record of the Law Department alongwith notification of appointment. A perusal of these documents reveals that Law Department moved summary for approval of the Prime Minister of only two persons i.e. the incumbent Judges, which was approved by the Chief Executive without any further scrutiny or investigation. No panel of suitable candidates was moved in the case of appointments of private non-petitioners 5 and 6. Summary moved by Secretary Law on 15.11.2012 states that he was directed to propose names of only 2 persons for appointment as Judges of the Shariat Court. Para 2 of the Summary is reproduced herein under for proper appreciation:-

41. It may also be noticed here that while describing eligibility of Justice Sardar Muhammad Shehzad Khan, it has been stated that he has been practicing as Advocate High Court since 1996. This statement is not found true, as record of office of Register of the High Court shows that Justice Sardar Muhammad Shehzad Khan was enrolled as Advocate High Court on 26.05.1997. All the proceedings pertaining to appointment of non-petitioners Nos.5 and 6 have been undergone in a mechanical and telegraphic manner. Summary by Secretary Law was moved to the Prime Minister under the pretext that Minister Law was not present in headquarter. Rules of procedure provide that Secretary Law has to move such a summary through Minister Law, which has been violated. It is also worth mentioning that all the procedure was undergone in a hurry and approval of the Prime Minister, the President and the Chief Secretary was obtained on same date i.e. 15.11.2012. Notification impugned was also issued on the same date. Approval of the Prime Minister, the President and Chief Secretary was obtained through fax. It also appears from the correspondence through fax that summary by the Secretary Law was moved on 15.11.2012 on 09:05 PM and it was sent back to the Secretary Law at 09:28 PM. It appears that whole the procedure was undergone just in 25 minutes and that too, in the darkness of night."

20. Against the aforesaid judgment dated 04.12.2013, of this Court two appeals bearing No.11/2014 titled Bashir Ahmed Mughal v. Azad Govt. and 6 others and No.99/2014 Mr. Sadaqat Hussain Raja v. Azad Govt. and 06 others, with leave, were filed before the apex Court. The appeals ibid were accepted through judgment dated 25.08.2014, reported as (2014 SCR 1258). The aforesaid paragraphs of minority judgment were not expunged by the Supreme Court, rather the same were referred to and relied upon in para 05 of the judgment supra. The operative part, however, of the aforesaid judgment consisting of paragraphs 51 and 52 is reproduced as follows:-

"51. We hold that for establishment of the Shariat Court according to the spirit of the constitution for achieving the object mentioned in Act, 1993, the legislation having following features is required:-

(d) There must be a provision for induction of at least one Aalim Judge, possibly having the qualification as near to Mujtahid or at least the qualification provided under Article 203-C of the Constitution of Islamic Republic of Pakistan i.e. having at least fifteen years experience in the Islamic law, research or instruction;

(e) The mode of appointment of Judges with consultation of the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court who is also Chief Justice of Shariat Court; and

(f) Providing mode for removal of Judge of Shariat Court for misconduct, incapability of properly performing functions of duties by reason of physical or mental incapacity.

Keeping in view the status of the Court with relevance to the scope of jurisdiction, its establishment be provided through amendment in the Constitution Act:

Provided if for the time being the required amendment in the Constitution Act for any reason is not practicable, in that case through sub-constitutional legislation having the mentioned features, the object can be achieved.

52. We are conscious of the fact that the implementation of this judgment without issuance of direction for taking immediate steps will create vacuum which will surely result into adversely affecting the interest of the public at large whose cases are pending before the Shariat Court. Therefore, the Government and other concerned authorities are directed to immediately under proviso of subsection (2) of section 3 of Act, 1993, appoint the Judges of the High Court (who have already been appointed with consultation of the Chief Justices) as Judges of the Shariat Court. However, the number of such Judges may be determined with consultation of the Chief Justice of the Shariat Court as required according to the volume of work.

The captioned appeal along with the review petition stands disposed off in the above stated terms with no order as to costs."

21. After pronouncement of the aforesaid judgment of the apex Court dated 25.08.2014, first Ordinance XVII of 2014 was issued on 21.11.2014, however, the same was repealed through section 3 of the impugned Ordinance XVIII of 2014, which was made on 01.12.2014 and promulgated on 12.12.2014. The provisions of section 2 of the aforesaid Ordinance are reproduced as follows:-

"2. Amendment of Section 3, Act IX of 1993.- In the Azad Jammu and Kashmir Shariat Court Act, 1993 (Act IX of 1993), in Section 3, following amendments shall be made.

(i) Subsection (2) shall be substituted as under:-

"(2) The Court shall consist of the Chief Justice and two or more Muslim Judges to be appointed by President after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of Shariat Court:

Provided that a Judge of High Court may be appointed as a Judge of Shariat Court for period not exceeding three years,"

(ii) Subsection (4), shall be substituted as under:-

"(4) A person shall not be appointed as a Judge of Shariat Court unless,

(a) he has for a period, or for periods aggregating, not less than ten years been an advocate or pleader of the High Court or High Court in Pakistan,

Or

(b) he has for a period of not less than ten years held a judicial office out of which not less than three years shall have been as District and Sessions Judge; and

(iii) After Subsection (4), Substituted as above, a new subsection (4-A) shall be added as under:-

(4-A) One shall be an Aalim Judge having at least fifteen years experience in Islamic Law research or instruction.

(iv) After existing subsection (5), a new subsection (5-A) shall be added as under:-

"(5-A) A Judge of Shariat Court shall not be removed from his office except in the like manner and on the same grounds as a Judge of the High Court under the Interim Constitution Act, 1974."

22. The petitioners voiced their serious grievance against the impugned Ordinance XVIII of 2014 on two fold grounds. First ground of attack is that Ordinance in question was issued by the official respondents in derogation of the above judgment of the apex Court dated 25.08.2014. A reading of paragraph 51 of the judgment supra makes it clear that the official respondents were directed that keeping in view the status of the Shariat Court with relevance to scope of jurisdiction, its establishment be provided through amendment of the Constitution Act. However, if for the time being, the required amendment in the Constitution Act for any reason was not practicable, in that case sub-constitutional legislation was allowed. The aforesaid judgment was pronounced by the Hon'ble Supreme Court on 25.08.2014. As per section 33 of the Constitution Act, 1974, the procedure for amendment in the Constitution has been laid down, which speaks as under:-

"33. Amendment of this Act.- [(1) The provisions of this Act may be amended in accordance with the following provisions:

Provided that no amendment shall be made in Section 31 this Section or Section 56 save with the prior approval of the Government of Pakistan.

(2) A Bill to amend this Act may originate either in the Council or in the Assembly.

(3) Within fourteen days of the day on which a Bill to amend this Act is introduced in the Council or the Assembly, the President shall summon a joint sitting and if the Bill is passed in the joint sitting with or without amendment, by the votes of the majority of the total membership of the joint sitting the Bill shall be presented to the President for assent."

According to subsection (2) of section 33 a Bill to amend the Constitution Act, may originate either in the Council or in the Assembly. According to subsection (3) within fourteen days of the day on which a Bill to amend the Constitution is introduced in the Council or the Assembly, the President shall summon a joint sitting and if the Bill is passed by the votes of majority of the total membership of the joint sitting, the Bill shall be presented to the President for assent. The official respondents, however, failed to bring anything on record that what steps were taken by them for amendment of the Constitution Act as per judgment of the apex Court. It appears from record that official respondents instead of amending Constitution, initiated proceedings for issuance of Ordinance on the subject, which was firstly issued on 21.11.2014, followed by the impugned Ordinance XVIII dated 01.12.2014. The impugned legislation before taking effect of an Ordinance was placed before the Legislative Assembly as a Motion of Bill by Law, Justice, Parliamentary Affairs and Human Rights Department vide script No.LD/Legis/380/2014 dated 08.12.2014. It further reflects from record that Chaudhry Tariq Farooq M.L.A., member select committee also put his dissenting note dated 25.03.2015 and apprised that on the basis of direction of the Hon'ble Supreme Court, Government-respondent should move a Bill to amend the Constitution Act, 1974. However, almost a period of 11 months has elapsed and for the purpose no any step was taken. The official respondents instead of complying command of the apex Court to amend the Constitution after about three months of judgment issued the Ordinance in question. As per subsection (3) of section 42-A of the Constitution Act, 1974, all executive and judicial authorities throughout Azad Jammu and Kashmir shall act in aid of the Supreme Court. Therefore, we have no hesitation to hold that the impugned Ordinance was promulgated in disregard of judgment of the apex Court supra.

23. The other ground of attack upon the impugned Ordinance is that the same was promulgated by violating section 41(1) of the Constitution Act, 1974. Admittedly, the impugned legislation in the shape of Motion of Bill was placed before the Legislative Assembly by Law, Justice, Parliamentary Affairs and Human Rights Department through script No.LD/Legis/380/2014 dated 08.12.2014. The session of Assembly was convened by the President on 09.12.2014. The Assembly after receiving also transmitted the aforesaid Bill to its select committee on 10.12.2014. The session of Assembly after three days was, however, prorogued sinadie by the President on 11.12.2014 at 03:05 PM vide notification dated 11.12.2014. The impugned Ordinance was, however, promulgated on 12.12.2014. Although at the time of framing the impugned Ordinance dated 01.12.2014, there was no session of Assembly, however, three days before promulgation, the session of Assembly was convened, which remained in session, till a day earlier, at 03:05 PM on 11.12.2014. The proposition is, therefore, that whether the impugned Ordinance could be promulgated by the President despite the fact that the same was placed before the Legislative Assembly in the shape of a Motion of Bill on 08.12.2014? Before adverting to resolve the aforesaid proposition it is appropriate to reproduce section 41 of the Constitution Act, 1974 which reads as follows:-

"41. Power to make Ordinance.- (1) The President may, except when the Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.

(2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly and shall be subject to like restriction as the power of the Assembly to make law, but every such Ordinance.

(a) 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 resolution; and

(b) May be withdrawn at any time by the President.

(3) Without prejudice to the provisions of subsection (2), an Ordinance laid before the Assembly shall be deemed to be a Bill introduced in the Assembly.

(4) The President [shall] likewise, except when the Council is in session, if so advised by the Chairman of the Council, make, [promulgate and withdraw] an Ordinance as the circumstances may require; and the provisions of subsection (2) and sub-section (3) shall apply to the Ordinance so made as if references therein to Act of the Assembly, and 'Assembly' were references respectively to 'Act of the Council' and

24. A bare reading of subsection (1) of section 41 of the Constitution Act, 1974, makes it abundantly clear that the President is enjoining wide powers to issue an Ordinance, however, there are two pre-conditions; first when the Assembly is not in session; and second when immediate action should appear to the President to be necessary. As per subsection (1) it is laid down that President may "make and promulgate an Ordinance". It means that the President, apart from making an Ordinance, has to promulgate it as well. It is, therefore clear that "making" and "promulgation" are two different and independent steps and the words applied shall be read disjunctively. Subsection (2) postulates two things. Firstly it lays down that an Ordinance "promulgated" under this section shall have the same force and effect as an Act of the Assembly. It means that an Ordinance "made" by the President does not have the effect of an Act of the Assembly, however, it has that force and effect when it is "promulgated". Secondly subsection (2) lays down that an Ordinance shall have force and effect as an Act of the Assembly for four months from its "promulgation". Therefore, starting point is not the date when an Ordinance is "made". The conclusion is that an Ordinance comes into force not when it is "made" by the President but when the second step of "promulgation" is completed. The legislative history of Ordinance making shows that "promulgation" has all along been a condition precedent. This was the position in the Govt. of India Act, 1919, Govt. of India Act, 1935, the Constitution of Pakistan, 1956, the Constitution of Pakistan, 1962 and the present Constitution of Pakistan, 1973. At the cost of repetition, however, it is reiterated that although at the time of "making" the impugned Ordinance there was no session of Assembly, however, admittedly three days before "promulgation" of the said Ordinance, the session of Assembly was convened and the impugned legislation in the shape of a Motion of Bill was also introduced before it, which was adjourned sine die a day earlier at 03:05 PM on 11.12.2014. After placing the Bill before the Legislative Assembly question of urgency loses importance, as legislature initiated proceedings while exercising its jurisdiction on the Motion of Bill before "promulgation" of the impugned Ordinance. As per our considered view, the intention of framers of the Constitution while applying words "make and promulgate" is that from the date of "making" Ordinance till its "promulgation" there should be no session of Assembly. The aforesaid interpretation seems to be rational, reasonable and even realistic. The Patna High Court in case titled Bidya Chaudhary and others v. Province of Bihar and others [A.I.R. (37) 1950 Patna 19], in a similar matter at page 20 of the report opined as follows:-

"^[4]. Section 88, Government of India Act is headed "Power of Governor to promulgate Ordinance during recess of Legislature". Clause (1) of the section is to the following effect:

"If at any time when the Legislature of a Province is not in session the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:

Provided that the Governor shall not, without instructions from the Governor-General, promulgate any such Ordinance if an Act of the Provincial Legislature containing the same provisions would under this Act have been invalid unless, having been reserved for the consideration of the Governor-General, it had received assent of the Governor-General."

It is manifest that this section, while granting legislative power to a Provincial Governor imposes as express condition or restriction limiting its exercise. The section expressly enacts that the Governor is empowered to issue Ordinance only at a time when the Legislature of the Province is not in session.

5. The argument on behalf of the applicants is that the Governor of Bihar promulgated the Ordinance on 3rd June when the Provincial Legislatures were in session, and hence, acted beyond the authority conferred upon him by S.88, Government of India Act."

It may be pointed out that word "make" "and" were not inserted in corresponding provisions of section 88 of constitution of India, 1950, which empowered the Governor to promulgate Ordinance during recess of Legislation.

According to (Judicial Review of Public Actions) Vol.I by Justice (R) Fazal Karim, a former Judge Supreme Court of Pakistan, who while highlighting in chapter 6 "Law-Making by Ordinances" opined that an Ordinance promulgated a day before sitting of the Assembly, or a day after prorogation of the Assembly, being the results of mala-fide. In this regard relevant para from page 213 of the book is reproduced as follows:-

"The question is one of jurisdiction under the Constitution. The Constitution itself ordains that its exercise is subject to pre-conditions. And what the Courts do in determining the existence of these pre-condition is to see that the Constitution is not infringed and is preserved inviolate. However that may be, cases are known and are easily conceived, in which a party can allege and show the non-existence of this pre-condition. Ordinances are some-times promulgated a day before the sitting of the Assembly or a day after the propagation of the Assembly. Then an Ordinance may be issued to achieve a particular political objective such as creating a new offence to harm a political opponent, or creating a new disqualification to prevent a political opponent from contesting elections without any intention of having it passed by the Assembly. These instances have been cited merely to illustrate the possibility of absence of this necessary pre-condition or the possibility of an Ordinance being the result of mala fides."

25. The rule of interpretation of Constitution instrument is that attempt shall be made to give harmonious meaning and save every word of the Constitution and not to destroy any of its provision. If section 41(1) be interpreted that at the time of making an Ordinance there should be no session of Assembly then words "and" "promulgate" will become meaningless, inoperative and redundant. This Court is guardian of the Constitution and a binding obligation is rest upon it to save and to give effect to every part and every word of the Constitution. The apex Court of Pakistan in Reference No.01 of 2012 [Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973] (PLD 2013 SC 279), at pages 312 and 313, opined on the point as follows:-

"33. The Constitution, being a living organ for all times is to be interpreted dynamically, as a whole, to give harmonious meaning to every Article of the Constitution.

34. The function of the Court, while interpreting the statute, is to discover the true legislative intent. Having ascertained the intention, the Court must strive to interpret the statute as to promote/advance the object and purpose of the enactment. For this purpose, where necessary, the Court may even depart from the rules that plain words should be interpreted according to their plain meaning. The Constitution was framed by its Framers, keeping in view the situations and conditions prevailing at the time of its making, but being an organic document it has been conceived in a manner so as to apply to the situations and conditions which might arise in the future. The words and expressions used in the Constitution, in that sense, have no fixed meaning and must receive interpretation based on the experience of the people in the course of working of the Constitution."

The same point came under consideration before the Karachi High Court in case titled Nasir Raza Jafery v. M/s Macter Pharmaceutical (Pvt.) Ltd. through Managing Director and 4 others [PLD 1998 Karachi 250]. At page 261 of the precedent case, it was observed as under:-

"16. Article 2-A of the Constitution, 1973 or for that matter, Objectives Resolution, were never treated to be as supra-Constitution. In the case of Mehmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426 it was held, inter alia, that it is not open to Court to hold that a provision of Constitution can be struck down on the ground of its being violative of the Objectives Resolution. It is settled rule of the interpretation that the Constitutional provisions are to be read in context with its other provisions in order to promote the spirit of Constitution; to harmonise its various provisions; not to bring any ambiguity and not to destroy any of its provisions."

The similar proposition came under consideration before the Quetta High Court in case titled Muhammad Akram and others v. Selection Committee for admission in First Years M.B.B.S., Bolan Medical College and others [2003 CLC 18]. At page 29 of the precedent case, it was held as under:-

"13. An elementary rule of interpreting the provisions of Constitution is to give effect to every part and every word of the Constitution. The Courts to reconcile Constitutional provisions harmoniously, instead of pointing out inconsistencies and contradictions between different provisions. The Courts to avoid interpretation which renders any article meaningless or inoperative, thus should construe the provisions which will render every word operative rather than leaning in favour of one which may render some words idle and inoperative."

An identical point was considered by the Lahore High Court in case titled Pakistan Chest Foundation and others v. Government of Pakistan and others [1997 CLC 1379]. At page 1423 of the report, it was observed as follows: -

"A bare perusal of paras. (a), (b) and (c) shows that provisions of para. (a) are quite independent in themselves and they have no nexus with paras (b) and (c) nor para (a) is dependent on paras (b) or (c). In fact paras (a), (b) and (c) embody independent and self-contained provisions. The basic rule of interpretation is that if the language of any provision of the Constitution is plain then it does not require to be interpreted with meanings which are not evident from the language. It is not allowable to interpret what has no need of interpretation. Similarly, effect has to be given to every part and every word of the Constitution. The Courts always avoid construction which renders any provision meaningless or inoperative and they must lean in favour of a construction which will render every word of the Constitution operative rather than making any word idle and nugatory. The language of para (a) of Clause (2) of Article 4 is plain and definite. It says that no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in accordance with law. Similarly, the language of Paras (b) and (c) is also plain and definite and they do not require the help of para (a) for their interpretation. If para (a) (ibid), is not an independent provision of law in itself as Mr. Shahzad Jahangir wants me to interpret, but is to be read in conjunction with paras (b) and (c), then it will give rise to every anamolous situation. The result of such a reading would be that provisions of 'due process of law' as contained in paras (b) and (c) would stand restricted only to the five subjects, namely life, liberty, body, reputation or property of any person. Such an absurdity has neither been intended nor it can possibly be imputed to the framers of the Constitution. I am, therefore, of the considered view that para (a) of Clause (2) ibid, is a self-contained provision and it has nothing to do with the other two paras (b) and (c). The import of the provisions of para (a) of clause (2) of Article 4 is that no action detrimental to the life, liberty body, reputation or property of any person can be taken unless such detrimental action has the backing of some law in existence."

The aforesaid view was reiterated by the Lahore High Court in case titled M.D. Tahir Advocate v. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs, Islamabad [1995 CLC 752], wherein at page 763 of the report, it was opined as under: -

"Following the principle of consistency and harmony while determining the vires, legality and effect of various provisions of the Constitution, all the provisions have to be read together in juxta position to each other, Therefore, when examining the legality of appointment in question on the touchstone of the existing Constitutional provisions, it cannot be said that the same is not in accord with the said provisions."

26. It is, therefore, quite clear that power to promulgate an Ordinance by the President under Section 41 of the Constitution Act, 1974, is designed when to make a statute, the legislation is required urgently and the Assembly must not be in session from the time of making till promulgation of Ordinance.

27. The impugned Ordinance is ultra vires yet from another angle. As per Rule 23 of the Azad Jammu and Kashmir Rules of Business, 1985, the promulgation of the same could be made subject to approval of the Cabinet. The aforesaid Rule speaks as under:-

"23. Cases to be brought before the Cabinet.--- (1) The following cases shall be brought before the Cabinet.

(a) Proposals for legislation, official or non-official bills, including money bills;

(b) promulgation and withdrawal Ordinances;

(c) the budget position and proposals before the presentation of Annual Budget and other financial statements in terms of Section 38 of the Act;

(d) proposals for the levy of new taxes;

(e) cases involving vital political, economic and administrative policies;

(f) cases which a Minister considers important enough for reference to the Cabinet;

(g) important reports and documents required to be laid before the Assembly;

(h) other cases required to be referred to the Cabinet under the provisions of these Rules; and

(i) any case desired by the Prime Minister to be referred to the Cabinet.

(2) Notwithstanding the Provisions of sub-rule(1), the Prime Minister may, in cases of urgency or other exceptional circumstances, give directions as to the manner of disposal of a case without prior reference to the Cabinet, but such case shall be reported to the Cabinet at the earliest opportunity thereafter."

We, have sent for record of the impugned Ordinance from Law, Justice, Parliamentary Affairs and Human Rights Department. A glance perusal of record reveals that through Ordinance XVII of 2014 dated 21.11.2014, section 3 of the Azad Jammu and Kashmir Shariat Court Act, 1993, was substituted through subsection (4) in the manner that the Judges not less than two third shall be the persons each one of whom (a) has for a period or for period aggregating, not less than ten years been an advocate or pleader of the High Court or High Court in Pakistan; or (b) has for a period of not less than ten years held a judicial office out of which not less than three years shall have been as District and Sessions Judge or District Qazi; and (ii) not less than one third shall be Ulema having at least fifteen years' experience in Islamic law research or instruction. However, when it was transpired to Law Department that since existing number of Judges is four beside Chief Justice, hence, the proportion of Aalim Judge one-third and other Judges as two-third would not be practicable as fraction remain would not be adjustable. The impugned Ordinance XVIII of 2014 dated 01.12.2014, was, therefore, redrafted by repealing the earlier one, whereby number of Aalim Judge has been fixed as one instead of proportion of one-third and proportion of two- third for other Judges was omitted. The composition of Shariat Court was made as consisting of two or more Judges instead of existing one or more Muslim Judge. The impugned Ordinance, therefore, was made and for obtaining approval of the President after seeking advice from the Prime Minister, the same was placed by Secretary Law to Minister Law, Justice, Parliamentary Affairs and Human Rights vide his note dated 21.11.2014. It appears that approval was granted by the Prime Minister Azad Govt. of the State oft Jammu and Kashmir on 24.11.2014 and by the President on 27.11.2014. The impugned Ordinance was, therefore, issued subject to approval of cabinet on 01.12.2014. As per note of Deputy Secretary (Legislation) dated 02.12.2014, the matter was brought into the notice of Additional Secretary (Legislation) for obtaining approval of the cabinet, which is reproduced as under:-

However, on the basis of the aforesaid note of Deputy Secretary (Legislation), no approval of the cabinet was obtained. As per note of Additional Secretary (Legislation) dated 05.12.2014, instead of obtaining approval of the cabinet, the impugned Ordinance was placed before the Legislative Assembly as a Motion of Bill on the advice of the Prime Minister, which reads as follows:-

On the basis of the aforesaid note of Additional Secretary (Legislation), Secretary Law through his note dated 05.12.2014, put the matter before Minister Law, which speaks as under:-

"Please append your signatures on the enclosed motions of the bills so as the Ordinance could be sent for enactment.

The Minister Law."

As per aforesaid note of Secretary Law, Minister Law accorded his approval to place the impugned legislation before the Legislature Assembly on 09.12.2014. Therefore, no approval was obtained from the cabinet as per note of Deputy Secretary (legislation) dated 09.12.2014. It reflects from record that even draft Bill was introduced in the Assembly without obtaining approval of the cabinet by violating sub-rule (4) of Rule 32 of Rules of Business, 1985. The aforesaid Rules of Business, have been framed under section 58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, hence, the same have a higher status then ordinary delegated legislation, as the same have been made on the authority of the Constitution itself, hence, having binding force. The same point came under consideration before the apex Court in Reference No.1 of 1977, by President, Azad Jammu and Kashmir [PLD 1978 SC (AJ&K) 37]. At page 38 of the precedent case it was held as under:-

"There is no doubt that under section 7(1) of the Act, subject to an express provision to the contrary in the Act, the President in the performance of his functions is to act on and in accordance with the advice of the Prime Minister and this advice is binding on him. It is also correct that under section 12(1) of the Act, subject to the Act, the executive authority of Azad Jammu & Kashmir is to be exercised in the name of the President by the Government represented by the Prime Minister as the Chief Executive of Azad Jammu & Kashmir and his Ministers who have to act through the Prime Minister. Had there been no Rules of Business, perhaps the position taken by the Law Officer and Mr. M.A. Aziz would have been tenable. Against this, we find that under section 58 of the Act, the President has been given the power to make Rules for carrying out the purposes of the Act. Such Rules of Business for the conduct of the business of Azad Jammu and Kashmir Government have been framed under section 58 of the Act on 8th March, 1975. Since these Rules have been made under the authority of the Act, they have a binding force and are very much operative."

An identical view was expressed by the apex Court in case titled Inayatullah Chaudhry and others v. Azad Jammu and Kashmir Government through Chief Secretary and others [1990 PLC (C.S.) 598], wherein at page 621, it was opined as under:-

"We have given our due consideration to the points raised by the learned counsel for the respondent. So far the question as to whether the advice of the Public Service Commission was binding on the President is concerned, it has been already observed while dealing with the case of Sardar Muhammad Ashraf Khan, respondent, that the advice of the Public Service Commission is not binding on the President but all the same the President could disregard the advice of the Commission only after following the procedure envisaged under rule 17 of the Rules of Business, i.e., if the department concerned did not agree with the recommendations of the Public Service Commission, it was incumbent upon the department to submit the matter to the President through the Department of Services and General. Administration; the President had to send the recommendations of the Public Service Commission back to it for reconsidering its recommendations and justifying the same. The President without following the said procedure could not disregard the advice tendered by the Public Service Commission."

28. As observed earlier that neither an approval of the cabinet was obtained for promulgating the impugned Ordinance nor the matter was reported to it at the earliest opportunity thereafter. It is settled principle of law that when a particular matter for performance of an act was prescribed under an Act or Rules, then such act must be performed according to the particular method alone or not at all. The apex Court while highlighting on the aforesaid principle in Reference No.1 of 1977, by President, Azad Jammu and Kashmir [PLD 1978 SC (AJ&K) 37], at page 39 of the report it was held as follows:-

This is an elementary principle that if an Act or Rule prescribes a particular method of performance of an act the act should be performed according to that method alone or not at all .

The aforesaid view was reiterated by the apex Court in case titled Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate, Muzaffarabad and others [PLD 2012 SC (AJ&K) 42]. At page 63 of the precedent case it was observed as under:-

"26. It is celebrated principle of law that when a particular method for performance of an act is prescribed under an Act or Rules, then such act must be performed according to that particular method or not at all as has been laid down in a case titled Habibullah v. D.I.G. Police and 3 others [2004 SCR 378]"

The same view was expressed by the apex Court of Pakistan in case titled Government of Punjab, Food Department through Secretary Food and another v. M/s United Sugar Mills Ltd. and another [2008 SCMR 1148], wherein at page 1151 of the report, it was held as under:-

" It is also settled proposition of law that if law has provided to a particular act in a particular manner the same is to be done in that particular manner or not."

The same proposition came under consideration before this Court in case titled Dr. Shehla Waqar Additional Secretary Finance, Muzaffarabad and another v. Azad Govt. of the State of Jammu and Kashmir through Chief Secretary, New Secretariat, Muzaffarabad and others (2010 PLC (C.S.) 416). At page 420 of the report, it was held as follows:-

"The Rules of Business have been framed under Section 58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, hence, their strict compliance is mandatory for smooth functioning of the Government as well as good governance. An order which is passed in violation of the Rules of Business, cannot be implemented as has been laid down in a case titled "Azad Jammu and Kashmir Government through its Chief Secretary and others v. M/s Spintex Limited (1998 PTD 3200)."

As before promulgation of the impugned Ordinance, neither approval of the same was obtained from the cabinet nor the matter was reported to the Cabinet, therefore, the Ordinance under challenged was also violative of clause (b) sub-rule (1) of Rule 23 of Rules of Business, 1985.

29. After having survey of case law supra and examining basic provisions of the Constitution Act, 1974 and Rules of Business, 1985, we have reached to the conclusion that promulgation of the impugned Ordinance XVIII of 2014, was ultra-vires to the Constitution.

30. As discussed herein above that the impugned Ordinance was ultra-vires to the Constitution, therefore, the point argued by the learned counsel for petitioners that the impugned Ordinance stood repealed at the expiration of four months from its promulgation, which was not re enacted, hence, appointments of the incumbent Judges seized automatically after its repealed and cross argument of the learned counsel for respondents pertaining to appointments of private respondents as protected under section 56-C of Interim Constitution Act, 1974, have become academic, hence, need not to be resolved.

31. The contention of the learned counsel for petitioners that incumbent Judge, respondent No.6 while performing his duties as a Junior Science Teacher, obtained Degree of Law without sanction of leave from the Education Department, by practicing fraud, was not raised in writ petition. It is settled principle of law that a party cannot be allowed to argue case against principle of pleadings. The aforesaid point came under consideration before the apex Court in case titled Muhammad Hussain v. Abdul Majid and others (1993 SCR 319), wherein at page 321 of the report, it was opined as under:-

"It may be stated that this is well settled principle of law that the parties cannot depart from the case as set up in their pleadings and vary the same subsequently at the appellate stage. The parties are bound by their pleadings and even if evidence is led in support of a plea which was not set up in the pleadings, such evidence cannot be looked into. Thus, the High Court has not committed any error in holding that the appellant cannot be permitted to put up altogether a different case from the one which he had set up in the plaint. It may be stated that according to the plaint, each of the contesting parties was entitled to equal share, i.e., 1/3 each, and the mutation was also attested in the year 1958 in accordance to the terms of the decree of the Deputy Custodian. Thus, it does not lie in the mouth of the appellant at the appellate stage to change his stand and argue that he was entitled to more than 1/3 share which he had according to the decree of the Deputy Custodian on the basis of which mutation was also attested."

The aforesaid view was again highlighted by the apex Court in case titled Sheikh Javed Iqbal v. Muhammad Bashir and 5 others (2010 PLC (C.S.) 1264). At page 1268 of the report, it was observed as follows:-

"It is a celebrated principle of law that no party can travel beyond its pleadings. Respondent No.1 has categorically taken a stand in para 9 of memo. of appeal before the Service Tribunal that no adverse order was communicated to him and he got knowledge of all the orders passed by the departmental authorities on service of order dated 18.09.2003. This factual assertion of the respondent has not been denied by the present appellant and pro forma respondents."

Therefore, argument on the supra point is against principle of pleadings, hence, the same is hereby turned down. The said respondent was, however, enrolled as an Advocate of the High Court by Azad Jammu and Kashmir Bar Council on 15.03.1999. The petitioners will be at liberty to raise the aforesaid objection before the Bar Council as per law.

32. The crux of above discussion is that by accepting the instant writ petition, the impugned Ordinance XVIII of 2014 dated 01.12.2014, is declared as ultra-vires to the Constitution and promulgated as without lawful authority. Consequently, the impugned appointment's notification of private respondents Nos.5 and 6 against the posts of Judges Shariat Court dated 27.03.2015, is quashed as without lawful authority and have no legal effect. The solicited writ of quo-warranto is issued against private respondents Nos.5 and 6 by holding that they are occupying the public office as Judges of the Shariat Court without authority of law and disputed posts are declared as vacant. However, all the acts done by the incumbent Judges appointed through the impugned Ordinance, including drawing benefits, are declared valid under the principle of de facto doctrine. The official respondents are directed to implement paragraph 51 of judgment of the apex Court in Bashir Ahmed Mughal's case decided on 25.08.2014, [2010 PLC (C.S.) 1264]. The Law Department-respondent is directed to introduce draft Bill for amendment of the Constitution Act, 1974, as per judgment supra within thirty days. After doing needful appointments against the vacant posts of Judges Shariat Court shall be made expeditiously on recommendations of Hon'ble Chief Justices on the basis of merit.

Sd/-

M. Tabassum Aftab Alvi.

Judge

Sd/-

Chaudhry Jahandad Khan,

Judge

AZHAR SALEEM BABAR, J.--- I have gone through the judgment recorded by my learned brother Mr. Justice M. Tabassum Aftab Alvi. I have all the respect for the tedious effort done by him; however, I decide to express my views on the subject as under.

2. Facts of the case and the arguments addressed at Bar have already been reproduced, which need no reiteration. However, the points raised at bar are briefly summarized as follows:-

3. A preliminary objection on behalf of non-petitioners is that the writ petition is not supported by an affidavit as per the requirement of Rule 32(2) of the High Court Procedure Rules, 1984. It has been explained in this behalf that affidavit annexed with the memorandum of writ petition has been attested by Ch. Zaffar Mehmood, Advocate, Oath Commissioner, whose license of Oath Commissioner expired on 17.06.2012. It has been claimed that Ch. Zaffar Mehmood, Advocate, Oath Commissioner was not authorized to attest affidavit on 27.04.2015, so the writ petition is liable to dismissal on this sole score. The non-petitioners have relied on a certificate issued by the High Court on 15.05.2015, which states that license of Oath Commissioner was issued to Ch. Zaffar Mehmood, Advocate vide notification No. 11140-45 dated 20.06.2009. It further Elaborates that license of the Oath Commissioner expired after a period of 3 years and another certificate has not been issued to him. It is relevant to mention here that the petitioners felt their mistake and filed an application before the High Court on 15.05.2015, whereby they acknowledged the fact that license of Oath Commissioner in favour of Ch. Zaffar Mehmood, Advocate had expired and the petitioners were not in knowledge of the same. The petitioners filed application for filing fresh affidavit in support of para 8 of writ petition and in support of memorandum of writ petition in general. A couple of affidavits dated 08.05.2015 have been filed with the application along-with a separate affidavit supporting the contents of application.

4. Rule 32(2) of the High Court Procedure Rules, 1984 lays down the procedure for filing a writ application in the nature of mandamus, prohibition, certiorari, quo warranto etc. It states that the memorandum of writ petition shall be accompanied by an affidavit verifying the facts relied on. It states that the writ petition shall be accompanied by a certified copy of the impugned order along-with annexures. For convenience, rule 32 is reproduced as under:-

"32.(1) An application under section 44 of the Constitution for a direction, order or writ in the nature of mandamus, prohibition, certiorari, quo warranto etc, other than a writ in the nature of habeas corpus shall be filed before the Deputy Registrar.

(2) The application shall set out the name and description of the applicant, the exact nature of the relief sought and the ground on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexure if any, in addition to separate copy for each one of the respondents. The annexure accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall be properly indexed."

5. A bare reading of the afore-produced rule shows that an attested copy of the impugned order/ notification is a pre requisite for filing a writ petition of the nature of quo warranto etc. The petitioners have explained that they filed an application for a copy of the impugned notification, which was not delivered to them. This fact has been verified by an affidavit as well. A copy of application filed before the competent authority has also been attached with the writ petition, which bears receipt number as well. It shows that the petitioners were not provided an attested copy of the impugned notification, however, they have filed an attested copy of the impugned notification afterwards. Objection to the extent of non-filing of attested copy of the impugned notification has been well attended in the proceeding paragraphs. I decide to overrule the objection at the strength of argument already stated. It is relevant to mention here that filing of attested copies of other documents and annexures is not the requirement of sub-rule (2) of rule 32 cited above.

6. So far as the argument of attestation of affidavit by an unauthorized person is concerned, record of the case shows that the instant writ petition was filed before the court on 27.04.2015. Affidavits in support of writ petition and in support of non-issuance of certified copies of the relevant record have been attested by Ch. Zaffar Mehmood, Advocate, Oath Commissioner on 27.04.2015. Sub-rule (2) of rule 32 of the High Court Procedure Rules, 1984 provides that at the time of filing of a writ petition, an affidavit is to be attached verifying the facts relied upon by the petitioner. Chapter XV of the High Court Procedure Rules, 1984 deals with affidavits. Rule 88 provides that:-

"88. An affidavit intended for use in the Court may be sworn before any authority mentioned in section 139 of the Code or before any Officer of the Court, or before the Presiding Officer of any Court or before a Magistrate or a Sub-Registrar or before an Oath Commissioner, appointed under these rules."

7. An affidavit for use in the court may be sworn I before any authority mentioned in section 139 of the C.P.C. or before any officer of the court, or before Presiding Officer of any court or before a Magistrate or a Sub-Registrar or before Oath Commissioner appointed under this rule. Rule 89(1) further provides as under:-

"89(1) All documents referred to in the affidavits shall be referred to as Annexures and shall be marked in the same manner as exhibits and shall bear a certificate signed by the Officer before whom the affidavit is sworn in the following form, namely: "This is the Annexure marked Exhibit A or Exhibit I (as the case may be) referred to in affidavit of A son of B resident of C sworn or confirmed before me this.... day of .....

Signed (CD)

Designation"

8. It may be mentioned here that section 139 of C.P.C. authorizes an officer or other person, whom the High Court may appoint for administration of Oath on affidavit. Certificate issued by the High Court on 15.05.2015 shows that Ch. Zaffar Mehmood, Advocate was issued license of Oath Commissioner for a period of three years w.e.f. 17.06.2009, which obviously expired on 16.06.2012. He was, therefore, not authorized to attest on Oath an affidavit. So, affidavits annexed with the memorandum of writ petition have been attested by an unauthorized person, which are non-existent in the eye of law. The instant writ petition, therefore, lacks mandatory requirement of sub-rule (2) of rule 32 of the High Court Procedure Rules. So far as application for filing fresh affidavits in support of the writ petition is concerned, this application is not worth consideration for the simple reason that a valuable right has accrued to the non-petitioners due to negligence of the petitioners and allowing the application would amount to snatch a valuable right of the non-petitioners. It was obligatory for the petitioners to remain vigilant over their rights and negligence committed by the petitioners cannot be allowed to be rectified through an application filed during trial of the case. Lahore High Court, while dilating upon the point in a case titled Bashir Ahmed v. Abdul Waheed [PLD 1995 Lahore 98] has laid down the characteristics of a valid affidavit. It has been explained in the fallowing words:-

"One can divide the affidavit into following three parts in accordance with the above requirements:--

(1) name of the court, title and subject of the proceedings and name etc. of the deponent;

(2) declaration of facts sought to be proved by the affidavit duly signed by the declarant, and

(3) verification duly signed by the deponent and attested by the Oath Commissioner.

In my humble opinion the affidavit which lacks any of the three parts is no affidavit in the eye of law. I am fortified in my view by the judgments reported as Bisakha Rani Ghose v. Satish Chandra Roy Singha and others AIR 1956 Cal. 496; Chandrika Prashad Singh and others v. Hira Lal and others AIR 1924 Pat. 312; Dipendra Nath Sarkar v. State of Bihar and others AIR 1962 Pat. 101, Brij Lal Suri v. State of Uttar Pradesh and others AIR 1954 All. 393 and Habib Bux v. Zahoor-ul-Hasan 1986 CLC 1119."

9. Election Tribunal Punjab in another case [2005 CLC 1521] has also expressed that object of Oath is to confront the maker with Almighty God and to ensure truth of declaration and that was to be made before Oath Commissioner. It was concluded that election petition and accompanying affidavit was not attested as required by law.

10. 2014 YLR 1641 HC AJ&K is a case wherein order of Election Tribunal was challenged through a writ petition. I happened to be the Presiding Officer of the Election Tribunal in that case. In an election petition filed by Ch. Muhammad Aziz, it was concluded by me that verification of the election petition fulfills the requirements of Order VI, Rule 15 of C.P.C. but larger bench of the High Court set aside the conclusion of the Election Tribunal. The High Court of Azad Jammu and Kashmir reproduced the extract from Zaffar Iqbal Jhagra's case 2000 SCMR 250. It is relevant to reproduce the extract as below:-

"Subsection (3) of section 36 (ibid) clearly requires that every petition and every Schedule or Annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order VI, rule 15, C.P. C. which when read with section 39, C.P.C., clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorised in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gillani though mentions that it is on oath, the oath was neither verified nor attested by a person authorised to administer oath and as such it could not be said that requirements of section 36 of the Act were complied with. We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed Iftikhar Hussain Gillani did not comply the provisions of section 36 of the Act and are of the view that these reasons do not suffer from any legal infirmity."

11. While relying on rules 88 and 89 of the High Court Procedure Rules, the High Court of Azad Jammu and Kashmir decided that the election petition has not been attested as per the requirement of law. It was further concluded that such an affidavit had to be attested by an officer authorized under section 7 of the Oaths Act, 1873. Judgment of the High Court was later on upheld by the apex Court of the State for the aforementioned reasons, therefore, I decide to disallow the application for filing of fresh affidavits in support of memorandum of writ petition and it is concluded that the instant writ petition lacks essential ingredient of sub-rule (2) of rule 32 of the High Court Procedure Rules, 1984 and is liable to dismissal on this score.

12. It has been argued on behalf of the petitioners that notification of appointment of the private non-petitioners could not be issued under Ordinance XVIII of 2014. It has been argued in this behalf that the impugned Ordinance was made on 01.12.2014 and was published on 12.12.2014. Meanwhile, Legislative Assembly of Azad Jammu & Kashmir convened its session on 09.12.2014 and the Azad Jammu and Kashmir Shariat Court Amendment Ordinance, 2014 was presented in the Legislative Assembly on 10.12.2014. Session of the Assembly was prorogued sinadie on 11.12.2014. It has been vehemently argued by Raja Sajjad Ahmed Khan, Advocate that before promulgation of the Ordinance, it had been presented before the Legislative Assembly and had thus become the property of the Assembly. In such a situation, promulgation of Ordinance was an invalid exercise, he further maintained. Learned counsel is of the view that section 41(1) of the Interim Constitution Act, 1974 (may be referred hereinafter as Act, 1974) requires that the President may make and promulgate Ordinance after satisfying that the circumstances render it necessary to take immediate action, however, such a power can be exercised by the President when the Assembly is not in session. It has been stressed that the word "make" and "promulgate" are conjunctive and indicate that an Ordinance should be made and promulgated in the same transaction. On the other hand, Mr. Abdul Rasheed Abbasi, Advocate appearing on behalf of the official non-petitioners expressed his view on the point by stating that the words "make" and "promulgate" used in subsection (1) of section 41 are dis-conjunctive and cannot be treated as same transaction. In his view there may be a lapse of time in making and publishing of an Ordinance.

13. I could not find any judge-made law on the point to seek guidance therefrom, however, phraseology of section 41 itself makes clear that the words "make" and "promulgate" do not indicate that both the proceedings should be done in the same transaction. The word "and" used between the words "make" and "promulgate" is not significant because subsection (4) of section 41 ibid provides the same wording in case of Council and another word "withdraw" has been inserted therein. For convenience section 41 is reproduced as under:-

"Power to make Ordinance.-- (1) The President may, except when the Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.

(2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly and shall be subject to like restrictions as the power of the Assembly to make law, but every such Ordinance.

(a) 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 resolution; and

(b) may be withdrawn at any time by the President.

(3) Without prejudice to the provisions of subsection (2) an Ordinance laid before the Assembly shall be deemed to be a Bill introduced in the Assembly.

(4) The President shall likewise, except when the council is in session, if so advised by the Chairman of the council make, promulgate and withdraw an Ordinance as the circumstances may require; and the provisions of subsection (2) and subsection(3) shall apply to an Ordinance so made as if reference therein to 'Act of the Assembly and Assembly were references respectively to 'Act of the council and council'."

14. The phraseology used in subsection (4) makes it clear that the President shall make, promulgate and withdraw an Ordinance if so advised by Chairman of the Council. So, the President has the same powers of making, promulgating and withdrawing an Ordinance in case of an Ordinance of the Government and the Azad Jammu and Kashmir Council. If the argument advanced on behalf of the petitioners is accepted, would mean that making, promulgation and withdrawal of an Ordinance should be done in the same transaction, which is obviously not logical. Presentation of Ordinance in the Assembly before its promulgation shall be examined in the succeeding paragraph. However, it is concluded that the President has independent powers of making and promulgating an Ordinance, no matter how much time is elapsed between the two transactions. It is relevant to mention here that clause (a) of subsection (2) of section 41 provides a maximum life of 4 months to an Ordinance from the date of its promulgation.

15. Another vital aspect of the matter is that what is the effect of presentation of Ordinance in the Legislative Assembly before its promulgation? An ancillary question is that whether before promulgation, an Ordinance can be legally labeled as "Ordinance" in view of section 41 of the Constitution Act. Subsection (2) of section 41 ibid explains that an Ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly. It further lays down that--

"----but every such Ordinance (a) 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 resolution; and

(b) may be withdrawn at any time by the President.

16. It is relevant to state here that making of an Ordinance does not confer validity on such Ordinance unless it is promulgated in accordance with law. In the instant case Ordinance XVIII of 2014 was placed before the Assembly on 11.12.2014 as per report of Select Committee. Phraseology of Ordinance XVIII of 2014 reflects that it was published on December 12, 2014. Constitutionally speaking a piece of legislation cannot be labeled as Ordinance unless it has been promulgated/published in official gazette for general information. It may be stated at the cost of repetition that life of an Ordinance starts from the date, it is published/promulgated as per requirement of section 41(2)(a). It cannot, therefore, be said that before promulgation of an Ordinance, it is a valid legislation. It is also worth mentioning that the words "promulgate" and "publish" are synonymous and are very often used in place of each other. Blacks Law Diction 5th Edition, assigns the following meanings of word "promulgate": to publish; to announce officially; to make public as important; or obligatory. The formal act of announcing a statute or rule of court. Whereas the word "publish" has been assigned the following meanings, to make public; to circulate; to make known to people in general. To issue; to put into circulation etc.

17. The above discussed constitutional phraseology leads to the only conclusion that before promulgation, an Ordinance cannot be validly presented before the Assembly. This view is further strengthened by sub-rule (2) of Rule 34 of Rule of Business, 1985, which states as follows:

"Ordinance.

(1) .

(2) The Law, Justice, and Parliamentary Affairs Department shall promulgate the Ordinance and in due course arrange to lay it before Assembly as required by clause (a) of subsection (2) of section 41 of the Azad Jammu and Kashmir Interim Constitution Act, 1974."

It barely means that an Ordinance can be presented before Assembly only after its promulgation. So, presentation of Ordinance XVIII of 2014 in the Assembly before its promulgation is invalid and is non-existent in the eye of law. It is observed that limitation of the Ordinance under discussion has already expired on 11.04.2015, so, it cannot be presented before the Assembly after its expiration as per the requirements of subsection (2)(a) of section 41 of the Act, 1974. It may also be observed here that Ordinance on the same subject cannot be re-enacted as per the dictum of the apex Court. So, remedy left to the Government is to present a new Bill on the subject in the Legislative Assembly in accordance with law. It is, therefore, concluded that Ordinance XVIII of 2014 was a valid piece of legislation which has met its natural death on account of sunset clause provided in subsection (2)(a) of section 41 of Act, 1974. However, effect of non-presentation of the Ordinance before the Cabinet would be discussed in the concluding paragraph of the judgment.

18. Now comes the question that what is the effect of expiration of Ordinance No. XVIII of 2014 on the notification of appointment of the private non-petitioners. Notification of appointment of the private non-petitioners was issued on 27.03.2015. As mentioned earlier, Ordinance XVIII of 2014 had its natural life up to 11.04.2015, so, the impugned notification of appointment of the private non-petitioners has been issued during the life of the Ordinance. It has been argued on behalf of the petitioners that the notification of appointment of the private non-petitioners (herein after called as impugned notification) has lost its validity at the expiration of its life of 4 months. AIR 1960 Allahabad 546 and PLD 1972 Lahore 316 referred. PLD 1972 Lahore 316 is a case wherein the petitioner was appointed as Additional Legal Officer of the Municipal Corporation of the City Lahore. He was given a notice of termination of his service by the Administrator of the Corporation, which was challenged by him through a writ petition. The writ petition was accepted by their lordships in the Lahore High Court and the impugned order was declared as without lawful authority. A full bench of Allahabad High Court in a case reported as AIR 1960 Allahabad 546 considered the plea that appointment of petitioner as Public Analyst under repealed Act was continued. Application of section 6 of General Clauses Act was discussed and it was concluded in paras 7 and 8 of the cited judgment as under:-

"(7) Dr. Chatterji had been appointed a Public Analyst under the U.P. Pure Food Act, 1950, in September 1953. It is not in dispute that Act was repealed by S.25 of the Prevention of Food. Adulteration Act, 1954, but it is contended by the prosecution that notwithstanding the repeal of the Pure Food Act the appointment of Dr. Chatterji as a Public Analyst remained effective by virtue of the provisions of S.6 of the General Clauses Act and that he must be deemed to be a Public Analyst within the meaning of S.13 of the Prevention of Food Adulteration Act. This was the view which found favour in AIR 1960 ALL. 117, but with great respect we do not think it to be well founded.

(8) The Prevention of Food Adulteration Act must be read as a whole, and when so read we have no doubt that the Public Analyst whose report is admissible in the evidence under S.13 of the Act is a Public Analyst for whose appointment provision is made in S.8. The repeal of the U.P. Pure Food Act had the necessary consequence of terminating the appointments of Public Analysts appointed under that Act unless their appointments are specifically saved; and our attention has not been invited to any provision of the new Act which would have that effect. A Public Analyst is defined in the Pure Food Act as "any person appointed by the State Government to perform the duties of a Public Analyst under this Act" and even if it be the case that the appointment is saved by virtue of the provisions of S.6 of the General Clauses Act the only result, in our opinion, will be that Dr. A.C. Chatteri will continue to be a Public Analyst under the Food Adulteration Act. It could not make him a Public Analyst within the meaning of the Prevention of Food Adulteration Act. With great respect we are of opinion that the decision in AIR 1960 ALL 117 that a person who has been appointed a Public Analyst under the U.P. Pure Food Act must be deemed a Public Analyst for the purposes of the Prevention of Food Adulteration Act is erroneous."

19. The cited judgment is distinguished from the case at hand because on the one hand section 6 of General Clauses Act does not apply to the case at hand and on the other hand, an Act was replaced by another one in the cited case. The effect of repeal of laws has been provided in section 56-C of the Act, 1974, which reads as under:-

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 taken effect;

(b) affect the previous operation of the law or anything 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."

20. A bare reading of the section amply clarifies that when a law is repealed or is deemed to have been repealed, the repealing law shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under law. Under section 56-C, Ordinance XVIII of 2014 is deemed to have been repealed by virtue of sunset clause provided in section 41(2), so, section 56(C) is fully applicable to the ease at hard. On the other hand, section 6 of General Clauses Act, 1897 does not cover a situation when an Ordinance has expired on account of its maximum life of 4 months. Section 6 afore-cited reads as under:-

Effect of repeal. Where an 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 of existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed of anything duly done or suffered thereunder.

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.

(d)

(e) "

21. Although clause (c) of section 6 provides that a repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred, so repealed, but in my humble view, section 6 ibid does not apply to the instant case for the simple reason that Ordinance XVIII of 2014 has not been repealed by another legislation, rather it has expired its limitation. So, mechanism provided in the Act, 1974 would be applicable, which shows that under section 56(C) when a law is repealed or is deemed to have been repealed, the reppeal shall not affect any right acquired or accrued under the law. The impugned notification, as mentioned earlier, has been issued during life of the impugned Ordinance, so, rights accrued to private non-petitioners are protected under section 56 (C) of the Act, 1974.

22. Another point raised and argued at bar is that whether appointments of the private non-petitioners can be challenged through a writ of quo warranto. Learned counsel for the non-petitioners is of the view that remedy sought for by the petitioners would amount to review the consultation of Hon'ble Chief Justice of the Azad Jammu and Kashmir and Chief Justice of the Shariat Court of Azad Jammu and Kashmir. Mr. Abdul Rasheed Abbasi, Advocate supported by learned Advocates for the private non-petitioners is of the view that opinion of the Chief Justice of the Azad Jammu and Kashmir and Chief Justice of the Shariat Court of Azad Jammu and Kashmir, as the case may be, even in administrative capacity is of binding nature. He has emphasized that consultation of Hon'ble Chief Justices cannot be reviewed via writ. Learned counsel has referred to a case decided by the Supreme Court of Azad Jammu and Kashmir titled Abdul Rahim Zubair Butt v. Azad Govt. and others in this behalf. It has further been argued that section 44(5) of the Act, 1974 defines the scope of writ jurisdiction of the High Court and the Supreme Court, High Court or a Court or Tribunal established under law have been excluded from the writ jurisdiction under subsection (5). In his esteemed view, a writ cannot be issued to Chief Justice of Azad Jammu and Kashmir or Chief Justice of High Court of Azad Jammu and Kashmir. He has further expressed that cancellation of notification of appointment of the private non-petitioners would mean that the Chief Justices may be directed to reconsider their consultations, which is not permissible under Constitution. Raja Ibraar Hussain, Advocate for the private non-petitioners has further strengthened the argument of Mr. Abdul Rasheed Abbasi, Advocate by contending that procedure for removal of judges of the Shariat Court has been provided in the impugned Ordinance of 2014 whereby Judge of Shariat Court can only be removed through Supreme Judicial Council. So, in his view, the impugned notification cannot be set aside in a constitutional writ by the High Court. On the other hand, Raja Sajjad Ahmed Khan, Advocate is of the view that matter of appointment of a Judge of High Court or for that matter a Judge of Shariat Court can be looked into in a writ of quo warranto. He has referred to PLD 1996 SC 324 and 1992 MLD 2083 in support of his version. The apex Court of the State in 1992 MLD 2083 has discussed the case of Ibrar Hussain v. Govt. of Pakistan [PLD 1976 SC 315] in detail and has approved the view taken by Justice Muhammad Gul and Justice Sallah-ud-Din. The Supreme Court of Azad Jammu and Kashmir has expressed its view at page 149 of the afore-cited judgment in the following words:-

"If an order or judgment of a Judge of High Court is challenged there can be no two views that what is being sought is a writ against the High Court because the order or judgment has been pronounced in exercise of the jurisdiction vested in the High Court and it is a situation in which Judge and the Court are inseparable. However if appointment of a Judge of the High Court is challenged by way of a writ of quo warranto what is in fact under challenge is the appointment of the Judge which is made not by the High Court or the Supreme Court but by the President. Therefore what has to be examined by the High Court is in fact the action of an authority outside the Courts and no order of Court under challenge."

23. It has further been held that a writ of quo warranto is maintainable against a Judge, which does not mean only a Shariat Court Judge but a High Court Judge as well. The matter has been well attended by my learned brother Judge in the preceding paragraphs, so, it hardly needs any further deliberation. Arguments advanced on behalf of the non-petitioners that cancellation of impugned notification of appointment of the private non-petitioners would amount to review the consultation of Hon'ble Chief Justices, is devoid of force. In 1993 SCR 131 appointment of two additional Judges in the High Court was a matter of dispute. While dilating upon section 43 subsection (2)(a) of the Act, 1974, it was concluded that an additional Judge of the High Court can only be appointed after fulfilling the requirements of subsection (2)(a) namely; if there is advice of the Azad Jammu and Kashmir Council and if the Chief Justice of the Azad Jammu and Kashmir High Court has been duly consulted.

24. Another question of vital importance is that whether the private non-petitioners have been appointed after valid consultation of the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of Shariat Court of Azad Jammu and Kashmir.

25. Qualification of a Judge of Shariat Court has been provided in amended section 3 of the Shariat Court Act, 1993. Ordinance, XVIII of 2014 provides an amendment with regard to appointment of Judge of a Shariat Court which says that the Court shall consist of the Chief Justice and two or more Muslims Judges to be appointed by President after consultation with Chief Justice of Azad Jammu and Kashmir and the Chief Justice of Shariat Court. Eligibility/qualification for the Judge of Shariat Court has been laid down as provided for appointment of Judge of High Court in the Constitution. There are, therefore, two essential ingredients for appointment of a Judge of Shariat Court which are:-

(i) consultation with Chief Justice of Azad Jammu and Kashmir; and

(ii) with Chief Justice of Shariat Court of Azad Jammu and Kashmir.

26. It has not been denied that Chief Justice of Azad Jammu and Kashmir and Chief Justice of Shariat Court have been consulted before appointing the private non-petitioners as Judges of Shariat Court. However, it has been argued that appointments of the private non-petitioners are politically motivated and certain facts regarding their political affiliation and personal conduct were not brought to the notice of the Hon'ble Chief Justices. In such a way it has been argued that consultation of the Chief Justices is defective. Before commenting on validity or otherwise of the consultation of the Hon'ble Chief Justices, I would like to clarify that allegation of political affiliation was raised against Sardar Muhammad Shahzad Khan, learned Judge of Shariat Court in a previous round of litigation. I was the author of minority judgment titled Sadaqat Hussain Raja v. Azad Govt. and 6 others. My learned brother Mr. Justice M. Tabassum Aftab Alvi, has reproduced paras 40 and 41 of the judgment recorded by me in the cited case. It may be clarified that appointment of Sardar Muhammad Shahzad Khan as Judge of the Shariat Court was set-aside on the grounds that Chief Justice of Azad Jammu and Kashmir and Chief Justice of Shariat Court have not been consulted before making appointment. It was further held that although provision of consultation of Hon'ble Chief Justices has not been provided in Shariat Court Act, 1993, however, it is against the spirit of Constitution and against the concept of independence of judiciary that appointment of Judges in superior courts are made without consultation with the Chief Justices. Mode of appointment of Sardar Muhammad Shahzad Khan as Judge Shariat Court was held to be non-transparent for the reason that the appointment was made in sheer violation of prescribed manner because a panel of suitable candidates was not moved from the two essential components i.e. Advocates and District and Sessions Judges. In that case, a panel of only two candidates, Sardar Muhammad Shahzad Khan and Ch. Muhammad Mushtaq was moved by the Law Department on directions of the Government and whole the process of appointment was conducted in the darkness of night. It was also found that Law Department even does not have the original record of appointment of the incumbent Judges and the correspondence comprised only fax copies of the summary and approval by the Government. It is pertinent to mention here that appointment of Sardar Muhammad Shahzad Khan (non-petitioner herein) was not set-aside merely on the basis of political affiliation.

27. So far as allegation raised in the instant writ petition regarding previous conduct of Mr. Mushtaq Ahmed Janjua, non-petitioner is concerned, it would suffice to say that the allegations leveled against him are questions of fact, which cannot be resolved in a constitutional petition. In this regard, the question of consultation with the Hon'ble Chief Justices and its effect has become more significant. AIR 1982 SC 149 is a case from Indian jurisdiction, wherein the mode of appointment, consultation and transfer of a Judge of High Court has been discussed in detail along-with other points. It may be mentioned here that the Chief Justice in the cited case had not recommended an additional Judge of the High Court for further regular appointment, which was challenged by the said Judge through constitutional petition. Although the cited case has distinguished facts as the Chief Justice of High Court had not recommended the additional Judge for regular appointment in the High Court, whereas in the instant case, the private non-petitioners have been recommended by both the Chief Justices, however, the principles laid down in the afore-cited case are of vital importance. Paras 88 and 89 of the Judgment would be useful to be reproduced as under:-

"88. Now where the Chief Justice of the High Court is reasonably satisfied after the greatest care and circumspection exercised by him as the holder of a high constitutional office to whom the Constitution has assigned an important function and in whom it has reposed a sacred trust, that the additional Judge in regard to whose suitability he has to give opinion, does not enjoy good reputation for integrity, he obviously cannot recommend such additional Judge for further appointment. It is possible that the Chief Justice of the High Court may go wrong in a given case and arrive at an erroneous opinion in regard to the suitability of an additional Judge for appointment for a further term and that may result in injustice to the additional Judge who may suffer by reason of such erroneous opinion but that cannot be helped because ultimately some constitutional functionary has got to be entrusted with the tasks of assessing the suitability of the person to be appointed an additional Judge or a permanent Judge and no better person can be found for this purpose than the Chief Justice of the High Court. The Chief Justice of the High Court may err in his assessment as anyone else may, fallibility being the attribute of every human being. But that is a risk which has necessarily to be taken and it cannot be avoided howsoever perfect may be the mechanism which human ingenuity can evolve. It may happen that the Chief Justice of the High Court, not being aware that the additional Judge whose term is about to expire does not enjoy, good reputation for integrity may recommend his name for appointment for a further term though he is clearly unsuitable for such appointment and, equally it may happen that on the basis of the information available with him which information may be incorrect, the Chief Justice of the High Court may come to the opinion that the additional Judge whose suitability he is called upon to consider does not possess good reputation for integrity through in fact he is a person of sterling character and possesses a high degree of honesty and integrity. These errors are inevitable in every process of assessment and the Constitution has sought to minimise them by entrusting the tasks of assessment to a high dignitary like the Chief Justice of the High Court who would be expected to act with a high sense of responsibility and, who by reason of training and experience, would be able to sift the grain from the chaff and arrive at a correct opinion on the material before him.

89. We might also at this stage after refer to one contention seriously pressed on behalf of the petitioners, namely, that what would be material to consider for the purpose of assessing the suitability of an additional Judge for further appointment would be not whether the additional Judge enjoys good reputation for honesty and integrity but whether in fact he possesses honesty and integrity. The argument of the petitioners was that if the additional Judge has the hall-mark of honesty and integrity "he cannot be removed or dropped because unconfirmed reports say that he is lacking in honesty and integrity" for otherwise " the reputation of every Judge would be at the mercy of rumours, gossips and unconfirmed reports". We do not think this argument is well founded. In the first place, it must be recommended that when the Chief Justice of the High Court is called upon to give his opinion in regard to the suitability of an additional Judge for further appointment, he is not required to adjudicate upon various matters bearing upon his suitability and to come to a definite finding or conclusion in regard to such matters. Where the complaint against an additional Judge is in regard to his integrity, the Chief Justice of the High Court is not expected to hold a judicial or quasi-judicial inquiry for the purpose of adjudicating whether the additional Judge is, in fact, lacking in honesty and integrity. Such an inquiry against a Judge whether additional or permanent would not be permissible except in a proceeding for his removal. What the Chief Justice of the High Court has to do is merely to assess the suitability of the additional Judge for further appointment and where lack of integrity is alleged against him, the assessment can only be on the basis of his reputation for integrity. The point we are making will become abundantly clear if we take the case of a member of the Bare or the senior most District Judge who is for the first time considered for appointment as an additional or permanent Judge. The integrity of the person under consideration would undoubtedly be a relevant factor to be taken into account, but in assessing such factor the Chief Justice of the High Court would not be expected to hold a judicial or quasi-judicial inquiry for the purpose of determining whether the person concerned does, in fact, possess honesty and integrity or is lacking in these qualities. The Chief Justice of the High Court would have to proceed on the basis of the reputation for honesty and integrity enjoyed by the person under consideration and if, on the basis of information gathered by him, the Chief Justice of the High Court comes to the view that such person does not enjoy good reputation for integrity, the Chief Justice of the High Court would be justified in not recommending such person for appointment. Where a question of honesty and integrity of a Judge is concerned, it is almost impossible to come to a conclusive determination whether he is lacking in integrity or not, because experience shows that most persons are not willing to speak if they know that they may be quoted and that in any event they are not prepared to testify in any judicial or quasi-judicial inquiry. It is therefore not enough in order to be able to recommend a person for appointment as a Judge to say that there is no proof of lack of integrity against him, because, if such were the test to be applied, there would be grave danger of persons lacking in integrity being appointed as Judges. The test which must be applied for the purpose of assessing the suitability of a person for appointment as a Judge must be whether the Chief Justice of the High Court or for the matter of that, any other constitutional authority concerned in the appointment, is satisfied about the integrity of person under consideration. If the person under consideration does not enjoy reputation for honesty and integrity, it would not be possible for the Chief Justice of the High Court to say that he is satisfied about the integrity of such person and in such an event, the Chief Justice of the High Court would be justified in not recommending such person for appointment, in fact, it would be his duty not to recommend such person. The public injury which may be caused by appointment of a Judge lacking in integrity would be infinitely more than the public injury which may result from non-appointment of a competent Judge possessing integrity. If therefore the Chief Justice of Dehli found on inquiries made by him that some of the complaints made against S.N. Kumar were not without basis and doubts about the integrity of S.N. Kumar were expressed by responsible members of the Bar as also by some of his own colleagues. The Chief Justice of Dehli could not be said to be unjustified in writing the later dated 19th February, 1981 declining to recommend S.N. Kumar for appointment as an additional Judge for a further term. We may once again repeat that this assessment of S. N Kumar by the Chief Justice of Dehli may have been erroneous and, as we shall point out a little later, the Chief Justice of India took the view that it was erroneous, but on no account can lack of bona fides be attributed to the Chief Justice of Dehli. On the bona fide view taken by him, the Chief Justice of Dehli did what it was his plainest duty in the circumstances to do."

28. Significance of consultation of Chief Justices has been well explained in the cited judgment and needs not further dilation. However, significance of consultation of Chief Justices and its effect has further been laid down in PLD 1996 SC 324, a famous AL-JEHAD TRUST case. Paragraphs 80, 81 and 82 of the judgment in AL-JEHAD TRUST case are relevant for guidance. It has been concluded by their lordships as under:-

"80. Coming back to Article 193 of the Constitution the plain reading of the provision is that the appointment of a Judge of the High Court is to be made by the President "after consultation" with.---

(a) Chief Justice of Pakistan;

(b) Governor concerned; and

(c) Chief Justice of the High Court (except where the appointment is that of the Chief Justice)

Here the intention is that the appointment is to be made by the President "after consultation" with three consultees who are mentioned there. In the Constitution proper scheme is provided for the appointment, hence, it can be called Constitutional appointment. For such appointment Constitution requires "consultation", which cannot be treated lightly as a mere formality. To say that the President has sole power of appointment and opinion of the consultees can be ignored particularly of the Chief Justice of the High Court and the Chief Justice of Pakistan, who are supposed to be experts in the particular filed of law in which the appointment is to be made, cannot be reasonable construction of the word "consultation". It is understandable that the Governor can find out from intelligence sources about the candidate who is to be appointed as a Judge and his report or opinion is to be confined to that aspect of the matter. The President can refuse to appoint a candidate in whose favour Chief Justice of the High Court and the Chief Justice of Pakistan have give their positive opinions, but Governor has given negative opinion for reasons of improper antecedents. The Chief Justice of High Court and the Chief Justice of Pakistan normally know advocates who appear in their Courts regularly and would nominate or recommend names of such advocates who are capable and fit to be Judges of the High Court and their opinion, which is expert opinion in a way, cannot and should not be ignored, but must be given due weight. "Consultation" in the scheme as envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive.

81. If the Chief Justice of High Court and the Chief Justice of Pakistan are of the opinion that a particular candidate is not fit and capable to be appointed as Judge of the High Court, then acting against the expert opinion would not be proper exercise of power to appoint him as a Judge on the ground that the President/Executive has final say in the matter. It is not correct interpretation to say that because word "consultation" is used, which is different from 'consent', opinion of Chief Justice can be ignored. If the opinion of the Chief Justice as then the President/Executive should give reasons which could be juxtaposed with reasons of the Chief Justices to find out as to which reasons are in public interest.

82. We are interpreting the word 'consultation' to widen and enlarge its normal scope for the reason firstly, that the Constitution-makers have not debated this word 'consultation' and fixed its parameters. Secondly, we would like to assign meaning to `consultation', which is consistent and commensurate with the exalted position of Judiciary as is envisaged in Islam. Thirdly, we would like to give positive interpretation to 'consultation' which promotes independence of Judiciary. Executive may have the last word and may issue notification of appointment, but cannot give loose interpretation to the word 'consultation' to ignore or brush aside expert opinion of Chief Justice of the High Court and the Chief Justice of Pakistan. Fourthly, the President is administered oath by the Chief Justice of Pakistan as required under Article 42 of the Constitution and the Chief Justice of Pakistan administer oath to other Judges of the Supreme Court and Chief Justice of Province administers oath to Judges of his High Court as contemplated under Articles 178 and 194, respectively, which shows that both the Chief Justices and heads of their institutions and their opinion in their own field of expertise should not be treated lightly particularly when they are Constitutional consultees and the appointments are also being made of the Judges of within the Constitutional scheme."

29. A survey of the aforesaid judgment transpires that independence of judiciary is an essential characteristic of democratic constitution particularly in an Islamic State, Constitution is the supreme law which provides the mode for running the business of the State. Appointment of Judges in the superior courts has a close nexus with the independence of judiciary, as has been explained in Al-Jehad Trust case. So, appointment of Judges in the superior courts is a sacred trust and the Constitution has fixed the responsibility of appointment of such Judges on the shoulders of the dignitaries of highest profile, which are: (1) President/Executive, (2) Chief Justice of Azad Jammu and Kashmir, and (3) Chief Justice of Shariat Court. I need not to mention here that all these dignitaries are under Oath to disburse their responsibilities in accordance with the Constitution. So, if the mode prescribed by the Constitution has been fulfilled and both the Chief Justices have been consulted before appointment of Judge of a Shariat Court, it would not be open to objection that such an appointment is invalid because of defective consultation. As stated earlier, appointment of a Judge of a superior court is a sacred trust and the Constitution has reposed such trust in the dignitaries of the highest profile. Everybody has to suffer for the enormity of his deeds, so satisfaction of conscience of the honorable Chief Justices is recorded under the impression that are the ultimate authority to judge the suitability of a person for judgeship. It is, therefore, concluded that consultation/ recommendations of the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of Shariat Court of Azad Jammu and Kashmir are conclusive and have binding effect on the Executive. It may be added here that both the Hon'ble Chief Justices have unanimously recommended the names of not less than a dozen persons for appointment as Judges of Shariat Court and it was optional for the Executive to pick-up the most suitable persons for such appointment. However, survey of cited case law and three days old judgment of the Supreme Court of Pakistan leads to the conclusion that wisdom of Chief Justices cannot be replaced by any then authority including the High Court. SoP has held that opinion/recommendation of the Judicial Commission is binding and cannot be replaced even by the Parliamentary Commission. End result of the discussion is that the private non-petitioners have been appointed after recommendations of the Hon'ble Chief Justices, which cannot be called in question.

30. It has further been argued on behalf of the petitioners that provisions of Rule 23 of Rules of Business have not been complied with, so the impugned Ordinance has no legal effect. Sub-rule (1) of rule 23 provides that an Ordinance before or after promulgation shall be brought before the Cabinet for approval. Sub-rule (2) however, provides that the Prime Minister may in case of urgency or other exceptional circumstances give directions to the manner of disposal of a case without prior reference to the Cabinet but the case shall be reported to the Cabinet at the earliest thereafter. It has been stated in the preceding paragraph that Ordinance VIII of 2014 was made on 1st December, 2014 and was promulgated on 12th of the same month. However, the Legislative Assembly of Azad Jammu and Kashmir convened its session from 9th December to 11th of December, 2014. The impugned Ordinance was presented before the Assembly on 10.12.2014. It may be argued that as, the Ordinance had already been presented before the Assembly in the shape of a Bill, so, referring the Ordinance to the Cabinet was not essential but this argument cannot be concurred with because the impugned notification of appointment has been issued at the strength of Ordinance No. XVIII of 2014. I have already discussed that presentation of Ordinance in the Assembly before its promulgation was invalid and unconstitutional. It has also been concluded that promulgation of the impugned Ordinance was quite in accordance with the provisions of section 41 of the Constitution Act, so, in my view, presentation of the impugned Ordinance before Cabinet was essential, as per rule 23(b) of the Azad Jammu & Kashmir Rules of Business, 1985. In this regard I agree with my learned brother Judge that Rules of Business have been framed in accordance with section 58 of the Interim Constitution Act, 1974, so these Rules have a constitutional backing. The Rules of Business having constitutional force behind them, stay at a higher pedestal as compared to any other rules of procedure. These rules are mandatory in nature and failure to comply with them results in invalidity of an act done in violation of these rules. PLD 1978 SC AJ&K 37 and 1990 PLC (CS) 598 have been well explained in the preceding paragraphs by my learned brother Judge. It is found from record of the Law, Justice, Human Rights and Parliamentary Affairs Department that the impugned Ordinance No.XVIII of 2014 was never referred to Cabinet before or after its promulgation. So, a mandatory provision of rule 23(a) of Rules of Business, 1985 has been violated. Failure to comply with the mandatory provision of Rules of Business has, thus, invalidated the impugned Ordinance. Any order issued or act done under this Ordinance is, therefore, of no legal effect. It may also be mentioned here that the impugned Ordinance No. XVIII of 2014 had a natural life of 4 months up to 11.04.2015. Notification of appointment of the private non-petitioners was issued on 27.03.2015 i.e. during life of the impugned Ordinance, however, the impugned Ordinance lost its legal effect because of its non-presentation before the Cabinet as per the requirement of Rules of Business. The impugned Ordinance could have been referred to Cabinet even after the issuance of notification of appointment of the private non-petitioners but the needful has not been done. So, a valid order of appointment has lost its significance because of omission of the relevant functionaries. It is also pertinent to bring on record that under rule 32 of Rules of Business, where the proposed legislation involved only verbal or formal amendment of an existing law, it shall not be necessary to obtain the Cabinet's approval before asking the Law, Justice and Parliamentary Affairs Department to give legal shape to it. It may be argued at the strength of this provision that it was not essential to refer the impugned Ordinance to Cabinet for approval but the argument is without force for the reason that rule 32 cited above relates to official Bills, which obviously originates from concerned department and does not apply to the Ordinance. Rule 34(1) of the Rules of Business also does not support the view that it was not necessary to refer the impugned Ordinance to the Cabinet because sub-rule (2) clarifies the situation, which states that the Law Department, after promulgating Ordinance has to lay it before the Assembly as required by section 41(2)(a) of the Act, 1974.

31. Before parting with the discussion, it is necessary to take notice of the fact that Ch. Zaffar Mehmood, Advocate/ Oath Commissioner has attested the affidavits without having a valid license. Apparently such an act amounts to misconduct of the Advocate concerned. Registrar High Court is directed to inquire into the matter and initiate the Bar Council for necessary action if misconduct is proved in his estimation.

Upshot of the above discussion is that writ petition is accepted for the reason that Ordinance No. XVIII of 2014 has no legal effect because it has been issued in violation of Azad Jammu & Kashmir Rules of Business, 1985, it is, therefore, set-aside. Order of appointment of private non-petitioners dated 27.03.2015 issued in accordance with section 3(2) of the Azad Jammu and Kashmir Shariat Court Act, 1993 (as amended by Ordinance XVIII of 2014) is of no legal effect and is also set aside. As a result whereof, the private non-petitioners shall seize to hold the offices of Judges Shariat Court forthwith.

Sd/-Azhar Saleem Babar, J

As there is difference of opinion among the Judges hearing the writ petition, however, unanimous conclusion is the same that writ petition is accepted for the reasons discussed herein above.

Sd/- M. Tabassum Aftab Alvi, J

Sd/- Chaudhry Jahandad Khan, J

Sd/-Azhar Saleem Babar, J

SL/51/HC(AJ&K) Petition accepted.