1999 PLP 90 (MLD)

as a member; or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his-election agent. (2) The election of a returned candidate shall not be declared void on the ground:-- (a) that any corrupt or illegal practice has been committed if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or (b) that any of the other contesting candidates was, on the nomination day, not qualified for, or was disqualified from, being elected as a member." The-proposition attracted the attention of the Supreme Court of Azad Jammu and Kashmir in the case titled ' Sardar Sikandar Hayat Khan v. Ghulam Mujtaba Bukhari and others (Civil Appeals Nos.7and 8 of 1990).,wherein it was 1;,;~ down as under:-- "

The provision of law extracted above shows that the Election Tribunal cannot set aside the election of a returned candidate if his nomination paper had been illegally accepted or if he was not qualified to be elected as a member. It shows that the petitioner cannot raise the present controversy before the Election Tribunal. It cannot, therefore, be said that the non-petitioners had any other remedy available to them. It we add to it the fact that no Election Tribunal is in existence today, the matter assumes greater importance.

It is evident that after deleting the aforesaid provisions be amendment, no remedy is available by resorting to Election Tribunal in case of rejection or acceptance of the nomination paper and, thus, the aforesaid authority does not help the case of the applicant; rather the amendment negates the validity of the arguments of the learned counsel for the applicant that where alternative remedy is available, jurisdiction cannot be invoked." Relying upon the aforesaid authorities in the light of law dealing with election petition, it is held that the petitioners have no other remedy, what to speak of adequate one . 12-A. The authorities referred to above by the learned counsel for the respondent, are of no avail to him in the background of law prevailing in Azad Jammu and Kashmir. It would be, useful to mention that the authority, PLD 1963 SC 382, which deals with the election matter, also did not debar the writ jurisdiction where actions are characterised as being done in bad faith in exercise of public power with a majority judgment and the minority view in spite of the Constitutional provisions, gave the verdict in favour of filing the writ petition. The other case, AIR 1988 SC (India) 66, also did not debar the writ jurisdiction while dealing with the matter of election in the University, to be referred to the State Government-under section 58 of the relevant Act and held that originally the remedy provided by the statute must be followed before the authority designated therein, but there may be cases where exceptional and extraordinary circumstances may exist to justify bypassing the alternate remedies. The other case, PLD 1996 SC 246, arose out of a suit brought by the petitioner wherein an objection with regard to the adequate remedy available in the shape of appeal was raised. The appeal 'filed against the order of High 'Court dismissing writ petition, was upheld by the Supreme Court through this judgment. Similarly, the case, PLD 1989 SC 396, was decided in the light of Article 225 of the Pakistan Constitution discussed above, as such, has also little relevance for the purpose of proposition in hand.

13. Next, it is to be determined whether respondent No.1 is a State Subject and District Magistrate, Muzaffarabad, respondent No.6 exercised the correct jurisdiction in granting the State 'Subject Certificate in his favour. The State Subject is defined the Azad 'Jammu and Kashmir Interim Constitution. Act, 1974, in the following words:-- "State Subject' means a person for the time being-residing in Azad Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the late Government of the State' of Azad Jammu and Kashmir Notification No. I-L/84, dated the 20th April, 1927 as amended from time to time ." The Notification No.I-L/84, dated April 20, 1927, quoted in 1997 SCR 108, while answering the President's Reference No.1 of 1996, decided on March 19, 1997, is reproduced below:-- "NOTIFICATION Dated, the 20th April, 1927. No.II-L/84--The following definition of the term 'State Subject' has been sanctioned by His Highness the Maharaja Bahadur vide, Private Secretary s Letter No.2354, dated the 31st January, 1927 to the Revenue Minister of Council and is hereby, promulgated fox general information:-- CLASS I: All persons born and residing within the `State-before the commencement of the reign of His-Highness the late 'Maharaja Gulab Singh Sahib Bahadnr, and also persons who settled therein before the commencement of Samvat year. 1942,-and have since been, permanently residing therein. CLASS II: All persons other titan those belonging to Class I who settled within-the State before the close of Samvat, year 1968, and have since permanently resided and. acquired immovable property therein. CALSS III: All persons, other than those belonging to Classes I and, II permanently residing within the State, who-have acquired under a Rayatnama any immovable property therein or who may hereafter acquire such property under an Ijazatnama and may execture a ayatnama after ten years' continuous residence therein. CLASS IV: Companies which have been registered as such within the State and which, being companies in which the Government are financially interested or as to be economic benefit to the State or to the financial stability of which the Government are satisfied, have by a special order of His Highness been declared to be the State Subjects." It would clarify that on April 20, 1927, the Ruler of Jammu and Kashmir State who was called His Highness the Maharaja Bahadur, sanctioned the definition of term "State Subject" and it was promulgated through a notification reproduced above by which the State Subjects were divided in three classes, namely Class-I, Class-II and Class-III, while the other Class, i.e. Class-IV was subsequently added to give status as State Subject to certain Companies registered within the State, alongwith some other amendments.

14. The Azad Jammu and Kashmir State Subjects Act, 1980 was enacted to regulate the law provided for issuance of State Subject Certificates. The rule under the aforesaid Act, were also framed on July 8, 1980. Subsection (c) of section '2 of the Act provides:-- "(a) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (b) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx -xx xx xx xx (c) 'State Subject Certificate' means a State Subject Certificate issued under the rules relating to the issue of such certificates." Section 3 of the aforesaid Act provides as follows "3 Construction of references to Government to laws relating to State Subjects.

In the late Government of the State of Jammu and Kashmir Notification No:I-L/84, dated the 20th April, 1927, and in all subsequent orders and rules relating to the definition of 'State Subject', the .expression 'Government' or any other expression, howsoever worded, referring to executive Government shall, so far as practicable, be constructed to refer to the Council." The relevant mile 4 of the Azad Jammu and Kashmir State Subjects Rules, 1980, is also reproduced as follows:-- "

4. State Subject Certificate.

(I) Any person claiming to be a State Subject may be granted a State Subject Certificate by the District Magistrate concerned in the manner prescribed below:-- (a) He shall apply in Form 'A' (Appendix I) in duplicate to a Magistrate of the First Class: This. application shall be supported by

(i) a certificate of birth of the applicant or any of his parents or grand parents, as the case may be issued by: (1) A village officer or an officer-incharge of a police station. (2) A Municipal or Town Committee of Corporation; or (3) A Registrar of Births and Deaths; and (ii) documents in support of the statements made in the application (b) The Magistrate Shall, in` attestation of the truth of the statement in the application, administer an oath or affirmation to the applicant and shall examine the evidence, oral or documentary, adduced by the applicant in support of his claim. He may, if he thinks 'it necessary, summon and examine any other witness likely to know the facts of the application and may call for any record relevant to it. (c) The -Magistrate shall forward the application with his recommendation to the District Magistrate concerned. . (2) The District Magistrate shall either reject the application or grant a State Subject Certificate in Form ' A-I' (Appendix-II) (3) Any person aggrieved by an order passed under sub-rule (2) may prefer an appeal to the Azad Government of the State of Jammu-and Kashmir within thirty days and the Government may pass such order as it deems fit."

15. It was contended by the learned counsel for the petitioners that the District Magistrate, Muzaffarabad, respondent No.6, did not exercise the correct jurisdiction vested in him. It watt explained that respondent No.1 applied through an application accompanied by an affidavit which contradicted each other. The verification was made by two Social Welfare Officers, Muzaffarabad who were not refugees, as such never migrated and were born after 1947, therefore; could not verify the status of respondent No.1. The aforesaid officers were falsely shown as residents of Baramula (Occupied Fart of Kashmir). It was also contended that the verification was also shown to have been made by Shah Ghulam Qadir, the then Minister Incharge of Social Welfare Department who has categorically denied to have issued any verification in this regard, through a letter dated 3-6-1996 written to the District Magistrate, Muzaffarabad, respondent No.6 and also stated before the Returning Officer, respondent No.3 and Chief Election Commissioner, respondent No.2. The counsel for respondent. No.1 controverted the arguments on the ground that the District Magistrate, respondent No.6, issued the State Subject Certificate on his satisfaction that matters which is the requirement of law.

16. A perusal of the record shows that respondent No.1 moved an application on Form-A, Annexure 'C', on 27-12-1995, for issuance of State Subject Certificate, in his favour, supported by an affidavit, Annexure ' C/6'. No other document except a photostat of the National Identity Card was filed. The verification dated 25-1-1996 was issued on behalf of two Social Welfare Officers, Muhammad Naeem and Shahzad Qayyum respondents Nos.4 and 5, in which they were shown to be the previously residents of Baramula (Occupied Part of Kashmir), Annexure 'C/2' . Their joint statement, Annexure ' C/3' in this respect was also recorded on March 5, 1996. Another verification dated June 20, 1996 on behalf of Shah Ghulam Qadir, the then Minister, now petitioner No.2 herein, was also filed in support of the application. It may, be mentioned that both the above-referred Social Welfare Officers moved an application accompanied by an affidavit, before this Court that they were not refugees and never migrated from Occupied Part of Kashmir but were residents of Azad Jammu and Kashmir. It was also added that they never appeared before S.D.M., Muzaffarabad and they were wrongly shown to be residents of Baramula (Occupied Kashmir). It was further stated that the verification was made by them on the persuasion of a driver namely Zahid Sheikh, of their office, who was already having the verification shown to have been made by Shah Ghulam Qadir, the then Minister, which persuaded them to do the same. It was further stated that the aforesaid driver told them that the requisite verification was required for financial aid from 'Zakat' fund. The other verification shown to have been issued by Shah Ghulam Qadir, petitioner No.2, was also categorical denied by him to have issued the same and a copy of letter dated 3-6-1996 issued by him to the Deputy Commissioner (District Magistrate), Muzaffarabad, for the false and fabricated verification in his name, was also appended with the petition as Annexure 'C/5'. This was the sum total of the evidence on the basis of which the impugned State Subject Certificate was issued. Another factor requiring consideration is that the petitioners made assertion in the writ petition that respondent No.1 was not a State Subject. It was contended by them that respondents No.1's family members were the old citizens of united-India (now Islamic Republic of Pakistan). It was also added that none of them was issued the State Subject Certificate or entered as a voter in the electoral roll maintained for refugees settled in Pakistan, except respondent No.1 who was only entered as a voter in the amended electoral roll of the Constituency LA-38, Valley. The petitioners in support of their claim also filed record of the property existing in -the name of Ch. Karim Bux, claimed to be grandfather of respondent No.1, in the year 1945-46, in Murree (Pakistan), Annexure 'D/I' and the other record of the property for the same year was shown in the name of Mst. Fatima Jan, the grandmother of respondent year in Rawalpindi, Annexure 'D/2'. The petitioners also filed copies of the electoral rolls of Ward No.47, Municipal Corporation, Rawalpindi, Annexures 'E/1' and 'E/2', showing respondent No.1 and his other family members as voters entered therein. The electoral roll maintained for the refugees of Kashmir settled in Pakistan, was also filed as Annexures 'F/1', 'F/2' 'F/3' and 'F/4', showing none of the family members of respondent No.1 entered as voter except respondent No.1 who was entered in the amended electoral roll of 1996, Annexure 'F/2'. It is worth-mentioning that the petitioners have supported their writ petition through an affidavit while respondent No.1 while contradicting the petitioners' assertions, did not file any documentary proof or an affidavit in support of his written statement.

17. The analysis of the aforesaid state of 'facts leads to the conclusion that the S.D.M. or District Magistrate had no evidence forming the basis of his satisfaction in issuing the relevant State Subject Certificate. Keeping in view the nature of verifications, particularly by the persons who were not refugees and were residents of Azad Jammu and Kashmir territory, born long after the War of Liberation of 1947,' it is satisfied that the S.D.M. or the District Magistrate Muzaffarabad, had no evidence satisfying them to exercise jurisdiction in issuing the requisite Certificate in the light of law applicable; described above.- The relevant Authorities ignored the instructions issued in this regard on 18-3-1987, 26-3-1988, 6-3-1990 and 15-10-1990 which provided particularly for the issuance of State Subject Certificate in favour of a refugee. It was specifically noted that there must be some record supporting the application and the verification must be made by the refugee Gazetted Officers having migrated from the Occupied area, alongwith other conditions necessarily to be satisfied. It implies that the S.D.M. or the District Magistrate did not apply his mind and failed to follow the mandatory provisions of law. Therefore, it can safely be held that the District Magistrate, Muzaffarabad did not exercise correct and legal jurisdiction in issuing the aforesaid Certificate.

18. It may also be added that the petitioners in the present proceedings have brought on record the evidence in support of their assertion that respondent No.1 was not .a State Subject and is a citizen of Pakistan. In support of the above assertion, it was brought on record that none of the family members of respondent No.1 was entered as a voter in the electoral roll maintained for the refugees of Kashmir settled in Pakistan or issued the State Subject Certificate except respondent No.1 who was lately registered in the amended electoral roll for the year 1996. It was also brought on record that the grandfather and grandmother of respondent No.1 were holding the property before 1947 in District Rawalpindi which shows that respondent No.1's assertion of his family having migrated from Occupied Kashmir in 1947, did not ring true. Though the fact of having the property in the name of fore-fathers of respondent No.1 before the War of Liberation and the non-registration of the name of his family members as voters in the refugees' electoral roll and appearing in the electoral roll of Municipal Corporation, Rawalpindi, is not a sufficient proof for holding the respondent No.1 as non-State Subject, but the fact remains that respondent No.1 while repudiating the petitioners' assertion, failed to offer any documentary proof/evidence and even his written statement did not appear to be supported by an affidavit, particularly when the inference of above facts goes against him. An affidavit, ordinarily, is considered sufficient in a writ petition if not rebutted by any cogent evidence or affidavit. The proposition finds support from Muhammad Sharif Khan's case (1993 SCR 88), wherein it was observed as under:-- "--Affidavit is considered sufficient in a writ petition prima facie proof IE and if not rebutted by cogent evidence, it becomes conclusive proof."

19. Now, it requires to be seen whether in Constitutional jurisdiction the State Subject Certificate issued by the concerned authority, can be assailed. Particularly when the relevant Act also provided an appeal against the order which, according to the respondent, was an adequate alternate remedy. It has been held more than once by this Court and the Supreme Court of Azad Jammu and Kashmir that the remedy provided by way of an appeal under the State Subjects Act is not an efficacious remedy. It has also been held that if the District Magistrate while exercising 'the jurisdiction under the. aforesaid Act, travels beyond the limitations prescribed by law, the writ petition can be attracted. Reliance is placed on Attaullah Atta's case (1996 CLC 1551), wherein the following observation was made by the learned Judges in the Supreme Court of Azad Jammu and Kashmir:'-- "

After giving our consideration to the matter we agree with the explanation of the learned counsel that the remedies before the Government or the Council were not adequate in the circumstances of the case. The High Court .has rightly held that it was common experience that such matters are not decided by the Government and the Council with necessary despatch. We may observe that delay in the present case would have created unnecessary complication because if the decision was to go against the appellant; he would have been displaced from the post of Assistant Commissioner after serving for a considerable time. Then the disputes about domicile certificate and the appointment based on it are interwoven matters and writ petition was the only efficacious remedy. ' After hearing the learned counsel for the appellant we are convinced that the reasons recorded by the High Court for accepting the appeal are weighty and cannot be differed with. According to rule of the Azad Jammu and Kashmir State Subjects Act, 1980, a District Magistrate can issue a certificate of domicile in favour of a person-if it is proved to him that the applicant had been continuously residing in Azad Jammu -and Kashmir or a period spreading over five years. Proof in support of five years' residence in Azad Jammu and Kashmir was not furnished. It has been rightly pointed out by the High Court that the appellant stated that he had been living in Ambore for 39 years since 1947, but, his age at the time when he made the application, was only 20 years. The claim of residence made by the appellant -stood falsified when the appellant produced two witnesses. They did not state that the appellant had been living in Ambore or any other place in Azad Kashmir, continuously for more than five years.

The proposition also came under consideration before this Court in the me titled 'Muhammad Faisal Rabbani v. Azad Government and others' (Writ Petition No.53 , of 1992, decided on 12-10-1992) wherein the learned Chief Justice while deciding the proposition dealing with alternative remedy available under the State Subjects Act, 1980, observed as under: "

7. The law provides that alternative remedy must be adequate and efficacious. Mere presence of alternative remedy is not sufficient to deny an aggrieved person the requisite relief, permissible through writ petition. The learned counsel for the respondents was unable to satisfy that the alternative remedy in the shape of an appeal before the Government was equally efficacious. In this view of the matter, despite presence of alternative remedy unless it is found efficacious, the petition cannot be dismissed on this sole ground. In an identical situation, the relief in the shape of nomination against the reserved seats in Pakistan Professional Medical Colleges was granted by this Court in exercise of its writ jurisdiction, in Imran Rauf's case, decided on December 24, 1991. The objection is, therefore, repelled.

8. The next objection pertains to detailed inquiry into the question of facts relating to alleged deception made by respondents Nos.3 and 4, in order to secure State Subject Certificates from the District Magistrate Mirpur, in their favour. No doubt that the Courts are reluctant to entertain the controversy in exercise of writ jurisdiction where necessary detailed inquiries are warranted but this is not an inflexible rule. When the Court is satisfied that an injustice has been caused to a citizen and his grievance cannot be redressed otherwise, it is permissible to redress the grievance of such person in exercise of writ jurisdiction, by adopting the inquiry into the question of facts. It is purely a discretionary matter. "

20. It was contended by the learned counsel for the answering respondent that the Registration Officer was a necessary party in whose absence the writ petition could not proceed. Ii may be stated that the petitioners unsuccessfully raised the objection in respect of qualifications of respondent No.1 before the Returning Officer an Chief Election Commissioner who were impleaded parties in the proceedings. The Registration Officer, in any circumstance, was not a necessary party particularly after the resolution made in respect of the impugned State Subject Certificate.

21. It is pertinent to mention that the High Court while exercising writ jurisdiction should not assume that role of Court of appeal but the findings of a Tribunal of special jurisdiction are not immune from challenge if those are patently wrong or based on non-reading, misreading or no evidence at all. The view that a Tribunal having the jurisdiction to decide a matter is competent to decide rightly or wrongly, requires modification. The matters requiring deep scrutiny of evidence or deep probe are held not to be a suitable subject of adjudication in writ petition but- the findings given by the special Tribunal can be assailed if those are found illegal or based on inadmissible evidence. Reliance may be placed on PLD 1986 SC (AJ&K) 120) Chief Election Commissioner, AJ&K v. Abdul Majid and others), wherein it was. laid down as under:-- "

S.44

Circumstances under which the findings given by a Tribunal of special jurisdiction can be assailed by invoking writ jurisdiction of High Court stated. It is correct that there is marked difference between the appellate and the writ jurisdiction of the High Court. The High Court while exercising the writ jurisdiction, should not assume the role of a Court of appeal but all the same findings of the Tribunal of special jurisdiction are open to challenge in writ jurisdiction if the findings are patently wrong or based on` inadmissible evidence or there is gross non-reading or misreading of evidence. In such cases, the error would be 'error of law' and the same can be rightly rectified in exercise writ jurisdiction. The view that a Tribunal which has the jurisdiction to decide a matter is competent to decide a matter is competent to decide it rightly or wrongly, would hold good only in a case which involves deep scrutiny of the evidence or requires an extensive and deep probe into a statutory provision of law for its interpretation."

22. In view of the above discussion, the State Subject 'Certificate issued in favour of respondent No.1 is cancelled. The entry of Vote No.210 in the electoral roll maintained for refugees of Constituency LA-38, Valley-4, order of Returning Officer, respondent No.3, dated June 2, 1996 and that of Chief Election Commissioner, Azad Jammu and Kashmir, dated June 8, 1996 and Notification, dated July 14, 1996 to the extent of declaring respondent No.1 as a returned candidate, are declared to be illegal and of no legal effect, as such, are not maintainable, by accepting the writ petition. The election of respondent No.1 consequently is also declared to be null and void. A.A./157/AJ&K Petition accepted.