P L D 2002 Supreme Court (AJ&K) 12 (PLP)

MUHAMMAD YUNUS SURAKHVI, J.‑‑--This petition for leave to appeal has been directed against an interim order passed by the High Court on 7‑1 2‑2(X)1 in a Writ Petition No.622 of 2001 for setting aside the order to the extent of stopping, the release of the contents of the writ petition to the Press and refusing the supplying of attested copies of writ petition and the impugned order to the petitioner.

2. The necessary facts, giving rise to the present petition for leave to appeal: are that a writ of quo warranto was tiled by the petitioner herein before the High Court of'‑Azad Jammu and Kashmir on 7‑12‑2001 and preliminary arguments were addressed before the learned Chief Justice of the said Court on the same date. The learned Chief Justice, according to the petitioner after hearing the preliminary arguments of the petitioner in view of the importance of the case felt pleased to constitute larger Bench comprising of the learned Chief Justice himself, Mr. Justice Ch. Muhammad Tai and Mr. Justice Riaz Akhter Chaudhry for hearing and disposal of the writ petition. The learned Chief Justice also posted the application for interim relief, tiled by the petitioner, to be considered by the aforesaid Bench of the High Court. The learned Chief Justice after constituting the Bench for hearing of the case, according to the petitioner, however, travelled beyond his jurisdiction vested in hint under the Azad Jammu and Kashmir Interim Constitution Act. 1974 (hereinafter to be referred as the Constitution) and the Code of Civil Procedure applicable to hearing of writ petitions as well as the High Court Procedure Rules, 1984 to elaborate the dictation of order dated 7‑12‑2001 which reads as under:‑‑ ?I have heard the petitioner in person. The case shall be placed before Full Bench consisting of myself and my learned brothers Mr. Justice Ch: Muhammad Taj and Mr. Justice Riaz Akhter Chaudhry on 8th of January, 2002. The petitioner has filed an application for interim relief that the respondent should be restrained from functioning as Chairman Ehtesab Bureau. This point shall also be considered by the Full Bench. The contents of the petition shall not be issued to Press nor retorted till it is placed before the Full Bench. Muzaffarabad.? Chief Justice December 7, 2001." The petitioner alleged that he duly applied for supply of copy of writ petition as well as the copy of order dated 7‑12‑2001 but the same stood refused to be granted and issued to the petitioner which is apparent from Annexure "PB" appended with the petition for leave to appeal wherein the attested copies of writ petition and interim order dated 7‑12‑2001 were demanded by the petitioner on payment of costs by submitting an application before the Registrar of the High Court on 7‑12‑2001. On this application there is a note of the Copying Clerk dated 10‑12‑2001 to the effect that the learned Chief Justice has issued directions not to supply the copies of the aforesaid orders, therefore, it was not possible for him to issue the requisite copies. The Deputy Registrar in view of the note of the Copying Clerk returned the original application to .the petitioner. The petitioner has challenged the act of the High Court in not supplying the attested copies of writ petition and the interim order dated 7‑12‑2001 to the extent indicated in the petition for leave to appeal.

3. In the writ petition tiled by the petitioner, the petitioner has raised the following amongst other points:‑‑ (i) That respondent ho. l 'Mr Justice (Rtd.) Basharat Ahmad Shaikh, during the period he was Judge of the Supreme Court was appointed as Chairman, Ehtesab Bureau of Azad Jammu,and Kashmir whereas '.:e was not eligible to hold any other office of profit while functioning as judge of the Supreme Court. The petitioner referred to Notification, dated 1st September, 2000 and a subsequent notification dated 4th January, 2001, whereby the terms and conditions of Chairman, Ehtesab Bureau were fixed. The Ehtesab Bureau Act was promulgated in Azad Jammu and Kashmir on 13‑1‑2001 and the same was published in the Extraordinary Gazette on 15‑1‑2001. Under the Ehtesab Bureau Act no new notification of respondent No.1 was issued, as such in January, 2001 the appointment of respondent No. l as Chairman, Ehtesab Bureau came to an end. Thus, all the actions taken and facilities enjoyed by the respondent and his other staff members and cases registered and investigated are violative of law and ultra vires of the Constitution and his all actions fall within the purview of continuous wrong and the respondent is holding illegally the office of Chairman, Ehtesab Bureau. In section 48 of the Ehtesab Bureau Act as there is no saving clause, therefore, the Ehtesab Bureau Ordinance having been repealed by coming into force of the Ehtesab Bureau Act, the notification of appointment of respondent No.1 as Chairman, Ehtesab Bureau under the Act was an essential prerequisite;. (ii)??????? that vide Notification No.S&GAD/MS‑3(8)!2001, dated 8‑10‑2001 the respondent was appointed as Acting Ombudsman and he duly took charge of the said office on 9‑10‑2001. Under section 5 of the Mohtasib Act, the respondent was not eligible to hold any office of profit to act as Chairman, Ehtesab Bureau: and (iii)?????? that under section 43(8) of the Constitution a Judge of tire High Court cannot hold any office of profit within a period of two years except the office of Chief Election Commissioner and the Chairman, Public Service Commission although in the said section of the Constitution nothing has been mentioned with regard to Judges of the Supreme Court. However, Schedule (IV) of the Constitution read with section 42(9) explicitly lay down that "The Chief Justice and the Judges of the Supreme Court of Azad Jammu and Kashmir shall be entitled to the same salary; allowances, privileges and pension as are admissible to the Chief Justice and the Judges of the Supreme Court of Pakistan". Similarly Schedule (V) of the Constitution states that "The Chief Justice and the Judges of the High Court of Azad Jammu and Kashmir shall be entitled to the same salary, allowances, privileges and pension as are admissible to the Chief Justice and Judges of the High Court in Pakistan". Thus the disqualification which applies to the Judge of the High Court equally applies to the Judge of the Supreme Court to be appointed on any office of profit within a period of two years from the date of his retirement. In paras. Nos. 4, 5 and 6 of his writ petition, the petitioner has raised various other grounds for issuing a writ of quo warranto against respondent No.1. The allegations made in all the paras. of the writ petition filed by the petitioner and the grounds taken by him yet remain to be decided by the High Court and at this stage we cannot substitute our own view for that of the High Court but leaving aside the allegations made in para. No.4 of his writ petition there are other substantial grounds of vital legal importance to be attended to in the first instance by the High Court.

4. At the present moment we are only concerned with two points on which the leave has been sought by the petitioner:‑‑ (i)???????? Whether the High Court was vested with any jurisdiction to pass an order dated 7‑12‑2001 to the extent that the contents of the petition shall not be issued to Press nor reported till it is placed before the Full Bench? and (ii)??????? Whether the High Court was justified in refusing to supply the copies of writ petition as well as the interim order demanded by the petitioner on payment of costs?

5. In support of petition for leave to appeal it was vehemently contended by the petitioner, who is an Advocate of the Supreme Court, that by imposing ban upon issuing the contents of writ-petition or publishing the same in the Press, the High Court committed an illegality and the same is against Fundamental Right No.9 enshrined in section 4 of the Constitution which provides that "Every State Subject shall have the right of freedom of speech and expression, subject to any reasonable restrictions imposed by law in the interest of the security of Azad Jammu and Kashmir, friendly relations with Pakistan, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence. The petitioner contended that under Fundamental Right No. 15 enshrined in section 4 of the Constitution all State Subjects, are equal before law and are entitled to equal protection of law. He, therefore, submitted that the subject‑matter of writ petition neither involved national security of the country nor it offends against friendly relations with Pakistan nor any public order, decency or morality. The contents of the writ petition, according to the petitioner, do not amount to contempt of Court, defamation or incitement of an offence. On the other hand his contention is that as far as possible he has tried to use a moderate and decent language by drafting his writ petition. However, he contended that he cannot be deprived of raising any of the grounds which, according to him, are of vital legal importance needing resolution by the Court. The petitioner further contended that refusal of supplying the attested copies of writ petition and interim order dated 7‑12‑2001 on the part of the High Court is violative of provisions of rules 132 to 134 of the High Court Procedure Rules, 1984. The same are reproduced below for proper appraisal of the controversy in dispute:‑‑- "

132. Copies of judicial record may be issued in accordance with these rules to any person who is legally entitled to obtain the same.