2001 PLP 2372 (YLR)
AZIZ MUHAMMAD KHAN and 4 others‑‑‑Petitioners Versus FEDERAL INVESTIGATING AGENCY, RAWALPINDI, ISLAMABAD and
| Citation | 2001 PLP 2372 (YLR) |
| Forum / Court | Azad J&K |
| Bench Members | Muhammad Reaz Akhtar Chaudhry, J |
| Parties | AZIZ MUHAMMAD KHAN and 4 others‑‑‑Petitioners Versus FEDERAL INVESTIGATING AGENCY, RAWALPINDI, ISLAMABAD and |
| Primary Law | Penal Code (XLV of 1860)‑‑ |
Q1: What are the key laws and sections cited in 2001 PLP 2372 (YLR)?
This judgment primarily cites: Penal Code (XLV of 1860)‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2001 PLP 2372 (YLR)?
The case was heard and decided by the Azad J&K bench comprising: Muhammad Reaz Akhtar Chaudhry, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2001 PLP 2372 (YLR) (AZIZ MUHAMMAD KHAN and 4 others‑‑‑Petitioners Versus FEDERAL INVESTIGATING AGENCY, RAWALPINDI, ISLAMABAD and). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Abdul Majeed Mallik, Umar Mehmood Qasoori, Haji Muhammad Afzal and Ch. Muhammad Azam Khan for Petitioners (in both the Petitions).
- These writ petitions were admitted for regular hearing Notices were issued to the non‑petitioners. The non‑petitioners appeared before the Court and filed their respective written statements. Non‑petitioners Nos. 1 to 3 (F.I.A., Director Economic, (SHO), 5 and 6 absented without any reason, thus, on 20‑5‑1999, ex parte proceeding was ordered against them. Only Mir Khalid Mehmood, Advocate appeared on behalf of the Muslim Commercial Bank Limited, Mirpur, non petitioner. While, in the other writ petition, non‑petitioner No.l, F.I.A. No.3, Special Judge and respondent No.4 also remained absent, therefore, ex pane proceeding was ordered against them. Only Mir Khalid Mehmood, Advocate for the Muslim Commercial Bank Limited, appeared before the Court.
- It would not be out of place to mention here that on 17‑2‑1999, the parties sought adjournment on the ground that they are negotiating for the compromise, therefore, the eases were adjourned. On 14‑6‑1999, again, an adjournment was sought on the ground that a compromise is being finalised, so, a short adjournment was allowed and the cases were adjourned. On 27‑9‑1999, the copy of the registered compromise was placed on the record. The learned counsel for the parties stated that the compromise has been effected between the parties, but certain other formalities are yet to be completed, therefore, the cases may be adjourned. The cases were adjourned on various occasions, and after the compromise, no one appeared on behalf of the F.I.A. Only Mir Khalid Mehmood, Advocate for the said bank appeared in the Court. Various adjournments were obtained on the ground that they want to submit a joint application, but ultimately, no joint application was moved. The arguments have been heard.
Headnotes / Summary
‑‑‑‑Ss.406, 409, 420, 468 & 471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 12, 21, 31 & 44‑‑ Jurisdiction of F.I.A. to register case‑‑ Registration of criminal case against petitioner by F.I.A. was challenged by the petitioners on ground that petitioner Mill was installed in Mangla, Mirpur, Azad Kashmir, its head office was situated at mirpur, transaction of loan had also taken place with the Bank at Mirpur and F.I.A. which being an institution under Government of Pakistan had no jurisdiction to register the case against the petitioners‑‑‑Validity Azad Jammu and Kashmir Interim Constitution Act, 1974 contained two Legislative Bodies in Azad Jammu and Kashmir; one being the Azad Jammu and Kashmir Council; and the other Azad Jammu and Kashmir Legislative Assembly; Azad Jammu and Kashmir Council which had exclusive authority and power to enact laws under S.31(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974 in respect of the subjects which were included in the Council Legislative List whereas the Assembly had all powers to make laws on all other residuary matters not included in the Central Legislative List‑‑‑Constitution did not recognise that the Executive Authority of Azad Jammu and Kashmir Council would be exercised by the functionaries or officers of the Government of Pakistan‑‑‑Powers and functions available to officers under the Act of Parliament of Pakistan, could not be extended to Azad Jammu and Kashmir because they were not subordinate to the Council or the Government of Azad Jammu and Kashmir ‑‑‑F.I.A. which was an institution of Pakistan Government and was not subordinate to Azad Jammu and Kashmir, had no jurisdiction to register case against the petitioners at Rawalpindi, Pakistan, regarding the affairs of the Company registered and located at Mirpur Azad Kashmir‑‑‑Cases registered with F.I.A. against the petitioners were declared to be without lawful authority. Jabeer Hotel, Mirpur v. Azad Jammu and Kashmir Council and others ref. Nemo for Non‑Petitioners Nos. 1, 3, 4 and 5 (in both the Petitions). Khalid Mehmood for Non‑Petitioners Nos. 1, 2, 4 and 5 (in both the Petitions).
Judgment & Decree
"The executive authority of the Council shall extend to all matters with respect to which the Council has power to make‑laws and shall be exercised, in the name of the Council, by the Chairman who may act either directly or through the Secretariat of the Council of which a Federal Minister nominated by the Chairman from amongst the members of the Council and not more than three Advisors appointed by the Chairman shall be incharge: Provided that the Council may direct that in respect of such matters as it may specify, its authority shall be exercisable by the Vice‑Chairman of the Council, subject to such conditions, if any, as the Council may specify." Under section 21(13) of the said Act, the executive functions of the Council can be delegated to its Officers, while Government of Azad Jammu and Kashmir enjoys the executive powers in respect of the subjects which are within the Legislative competency of the Assembly. It is provided in section 19 of the said Constitution. Section 12 of the Azad Jammu and Kashmir Constitution Act contains, that the executive authority of Azad Jammu and Kashmir; shall be exercised by the Government consisting of the Prime Minister and the Ministers. The executive authority of the Council and the Government can be delegated to the officers of the Council Bird Azad Jammu and Kashmir Government. Such authority can be extended to the Officers subordinate to the Council or Azad Jammu and Kashmir Government. The Interim Constitution Act does not recognise that the executive authority of the Azad Jammu and Kashmir Council will be exercised by the functionaries or officers of the Government of Pakistan. This view finds support from an unreported judgment of Supreme Court, Azad Jammu and Kashmir, titled" Jabeer Hotel Mirpur v. Council and others. For having proper perception, I would like to reproduce the relevant portion of the judgment which reads as under.‑ "
17. Now we take up the main point that the functions of the EOB Institution set up under the 1976 Act enacted by the Parliament of Pakistan could not be extended to Azad Kashmir and powers cannot be conferred on its employees by the Azad Jammu and Kashmir Council or the Assembly. In other words, the objection is that the Institution cannot function in Azad Jammu and Kashmir.
18. Azad Jammu and Kashmir has a written Constitution. Azad Jammu and Kashmir Interim Constitution Act was enacted, as is laid down in its preamble, to provide for the better Government and Administration of Azad Jammu and Kashmir until such time as the status of Jammu and Kashmir is determined through a plebiscite to be held under the auspices of the United Nations. As is stated in the preamble, it was enacted with concurrence of the Government of Pakistan. Interim Constitution Act postulates that there will be two legislative bodies in AJK. One is the Azad Jammu and Kashmir Council which is headed by the Prime Minister of Pakistan, which term includes Chief Executive of Pakistan, and consists of six members who are elected by the Azad Jammu and Kashmir Assembly and five other members who are nominated by the Prime Minister of Pakistan. President and Prime Minister of Azad Jammu and Kashmir are also members of the Council. The Azad Jammu and Kashmir Council has power to enact laws under section 31(2) in respect of the subjects which are included in the Council Legislative List. The other legislative body is the Azad Jammu and Kashmir Legislative Assembly consisting of forty‑eight elected members. The Assembly has to power to make laws in all the residuary matters which are not included in the Council Legislative List. The Council also has executive authority which vests in its Chairman. It is provided in subsection (7) of section 21 of the Constitution Act as follows:‑‑ (7) The executive authority of the Council shall extend to all mattes with respect to which the Council has power to make laws and shall be exercised, in the name of the Council, by the Chairman who may act either directly or through the Secretariat of the Council of which a Federal Minister nominated by the Chairman from amongst the members of the Council and not more than three Advisors appointed by the Chairman shall be Incharge. Provided that the Council may direct that, in respect of such matters as it may specify, its authority shall be exercisable by the Vice‑Chairman of the Council, subject to such conditions, if any, as the Council may specify."
19. It is provided in subsection (13) of section 21 that the executive functions of the Council can be delegated to its officers. It reads as under:‑ "
13. The Chairman may regulate the allocation and transaction of the business of the Council and may, for the convenient transaction of that business, delegate any of its functions to officers and authorities subordinate to it".
20. Unlike Azad Jammu and Kashmir Council, the Legislative Assembly does not have any executive powers. The Azad Government of the State of J&K enjoys executive powers in respect of the subjects which are within the legislative competence of the Assembly. It is provided in section 19 of the Constitution Act as follows:‑‑‑ "
19. Extent of Executive Authority of Government.‑‑‑(1) Subject to this Act, the executive authority of the Government shall extend to the matters with respect to which the Assembly has powers to make laws. (2)..... (a)...... (b)...... (3) Notwithstanding anything contained in this Act, the Government may, with the consent of the Council, entrust either conditionally or unconditionally, to the Council, or to its officers functions in relation to any matter to which the executive authority of the Government extends."
21. It is provided in section 12 that executive authority of Azad Jammu and Kashmir shall be exercised by the Government consisting of the Prime Minister and the Ministers. Subsection (5) lays down as follows:‑‑ "(5) The Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it."
22. It is clear from the provisions noticed above that executive authority of the Council and the Government; can be delegated to officers and authorities subordinate to them. The Interim Constitution Act does not postulate that executive authority of Azad Jammu and Kashmir Council will be exercised by the functionaries or officers of the Government of Pakistan although the Prime Minister of Pakistan is the Chairman of the Council. It is equally clear that while performing functions as Chairman of the Council, the Prime Minister of Pakistan cannot delegate any functions of the Council to an officer or authority in the Government of Pakistan, although they are subordinate to him, as Prime Minister.
23. According to the Constitution of Pakistan of 1973, and Azad Jammu and Kashmir Interim Constitution Act, 1974, Azad Jammu and Kashmir is not a part of Pakistan and laws of Pakistan are not applicable to the liberated territory of Jammu and Kashmir. Thus, the functionaries appointed under a particular law which is in force in Pakistan, do not have the jurisdiction to function in Azad Jammu Kashmir. It is provided in subsection (4) that the Federal Government shall establish an Institution called the Employees of Old‑age Benefit Institution which shall be a body corporate. The employees Old‑age Benefit Act, 1976 contains a provision in subsection (2) of section 1 that the said Act was to extend to the whole of Pakistan. The Act does not visualise that it will perform functions in Azad Jammu and Kashmir. Section 7 lays down that there will be a number of trustees appointed by the Government and that four members shall be those who have been nominated by the Provincial Governments. There is no mention that it will also have a member from Azad Jammu and Kashmir. It is thus clear that the EOB Institution is performing functions in connection with the Federation. It is set up by the Federal Government and is under its control. The functions which it performs are entrusted to it by the Federal Legislative and the Federal Government. Clearly it is not functionary subordinate to the Azad Jammu and Kashmir Council. It follows that' Azad Jammu and Kashmir Council could not delegate its functions to the said Institution.
24. In fact the Constitutional position is that the Azad Jammu and Kashmir Council and the Azad Jammu and Kashmir Legislative Assembly are not empowered to legislate in respect of officers of the EOB Institution. Legislative powers of the‑ Council and the Assembly are laid down in section
31. Subsection (1) is relevant here. "
31. Legislative Powers.‑‑‑(1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws. (a) for the territories of Azad Jammu and Kashmir; (b) for all Sate Subjects wherever they may be; and (c) for all officers of the Council or as the case may be, the Government, wherever they tray be."
25. This provision manifestly lays down that the powers to make laws outside Azad Jammu and Kashmir is restricted only to State subjects wherever they may be and to officers of the council and of the Government wherever they may be. The officers of the EOB Institution are not officers of the Council or the Government. Therefore, the Council or the Assembly cannot legislate for them. It means in other words that law cannot be framed so as to confer powers or functions on the employees of the EOB Institution by the legislative bodies of Azad Jammu and Kashmir.
26. It follows that the Azad Jammu and Kashmir Employees Old‑age Benefits (Extension of Functions to Azad Jammu and Kashmir Act, 1980 (Act X of 1980) was not competently enacted by the; Azad Jammu and Kashmir Council, and was, therefore, void from its inception. The Azad Jammu and Kashmir Council (Validation of Laws) Act, 1995 also suffered from the same illegality so far as it purported to validate Act X of 1980. Consequently, Act k of 1980 as well as the provisions in the aforesaid Validation‑ Act relating to ‑Act X of 1980 are struck down for want of legislative competence. The result is that all actions taken and orders passed by the EOB Institution in respect of Jabeen Hotel and step/actions taken by the functionaries in Azad Jammu and Kashmir under direction of the EOB Institution were also without lawful authority and of no legal effect." The same like proposition also arose before the Supreme Court of Azad Jammu and Kashmir in the aforesaid case and it has been held by the Supreme Court Azad Jammu and Kashmir that EOB is an Institution of Pakistan. Its functions could not be extended to Azad Jammu and Kashmir. The powers and the functions available to the officers of EOB, under the Act of Parliament of Pakistan, could not be extended to Azad Jammu and Kashmir because they are not subordinate to the Council or the Government of Azad Jammu and Kashmir. The F.I.A. is an Institution of Pakistan Government. It is neither subordinate to the A.J.K. Council nor to the Government of Azad Jammu and Kashmir, therefore, the Council was not competent to extend the jurisdiction of F. I. A. to Azad Jammu and Kashmir, thus, the F. I. A. has no jurisdiction to register the case against the petitioners at Rawalpindi (Pakistan) regarding the affairs of ' the company registered at Mirpur. It would also not be out of place to mention here that Special Judge Banking Court has also without any jurisdiction allowed F.I.A. to investigate the affairs of the petitioners‑company. The Banking Tribunal established at Rawalpindi (Pakistan) had only the jurisdiction to the extent of the amount of loan not exceeding thirty million rupees. For having proper perception, I would like to reproduce section 2‑B clauses (a) and (b) which contain the definition of the., Banking Tribunal and the same reads as under:‑‑ "Banking Court" means:‑‑ (i) in respect of a case in which the outstanding amount of claim based on a loan or finance does not exceed thirty million rupees or the trial of offences under this Act, the Court established under section 4; and (ii) in respect of any other case, the High Court." In the instant case, the amount involved was rupees 184 millions, therefore, the Banking Tribunal established at Rawalpindi (Pakistan) was not competent to allow the F.I.A. to investigate the accounts of the petitioners‑company. The upshot of the above discussion is that the writ petitions are accepted and the cases registered with the F.I.A. against the petitioners at Rawalpindi (Pakistan) are hereby declared to be without lawful authority. H.B.T./24/A.J.K. Petitions accepted.