1993 PLP 432 (CLC)

(On appeal from the judgment of the High Court dated 27‑10‑1992 in Writ Petitions Nos.90 and 94 of 1992). (a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑S. 44‑‑‑Constitutionl petition‑‑‑Maintainability‑‑‑Constitutional petition can be based on the violation of law. A.J.K. Government v. Neelum Flour Mills 1992 SCMR 431; The Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service PLD 1958 SC (Pak.) 437; Muhammad Hussain Munir v. Sikandar and others PLD 1974 SC 139; Province of West Pakistan v. S.I. Mahbub, I.S.E., Chief Engineer PLD 1962 SC 433; Moin‑ud‑Din v. Negotiating Committee for Disinvestment of AKMIDE Units PLD 1987 SC (AJ&K) 99; Arsalla Khan v. Bashir Ahmad Blour PLD 1976 SC 581; Mazhar Hussain v. Province of Punjab PLD 1985 Lah. 394; Majlis‑i‑Intizamia v. Secretary to Government PLD 1975 SC 355; Miss Tahira Mahmood v. Chairman, Nomination Board PLD 1975 Azad J&K 108; Miss Uzma Ishaque v. Azad Jammu and Kashmir Nomination Board PLD 1986 Azad J & K 112; Anjuman‑e‑Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha PLD 1966 SC 639; Rashid A. Khan v. West Pakistan Railway Board PLD 1973 Lah. 733 and Kasturi Lal Lakshmi Reddy v. The State of Jammu and Kashmir AIR 1980 SC 1992 ref. (b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑‑Ss. 58 & 44‑‑‑Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983, R.3‑-‑Violation of Rules‑‑‑Competency to file Constitutional petition ‑‑‑Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983, having been framed in exercise of powers conferred by S. 58, Azad Jammu and Kashmir Interim Constitution Act, 1974, have statutory backing, and thus, a Constitutional petition can be based on their violation. (c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑S. 44‑‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Constitutional petition filed before High Court was not to enforce a contractual liability but related to statutory rules regulating acceptance of tenders‑‑‑Where such rules were found to have been violated, appropriate remedy in the nature of a writ was available. (d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑S. 44‑‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Where a public functionary was acting under a law or under an instruction having the force of law he was bound to record correct conclusions about the facts failing which Constitutional jurisdiction would be attracted. (e) Question of fact‑‑‑ ‑‑‑‑ Questions of fact to be decided on basis of proper proof on the file and not on the basis of submissions made at the bar‑‑‑Proof follows pleadings, viz. a fact has to be first pleaded and then proof thereof has to be furnished‑‑ Where a fact was not pleaded, there could be no adjudication thereon.‑‑ [Proof]. (f) Finding of fact‑‑‑ ‑‑‑‑ Findings of fact based on unattested copy of document as against attested copy would not be legally sustainable and had to be set aside. (g) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑S. 44‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Constitutional petition accompanied by a copy of document which did not contain correct entries would be sufficient reason to reject the petition. (h) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑S. 44‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Person not coming to Court with clean hands would disentitle himself to any relief even if same was otherwise due to him. (i) Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983‑‑‑ ‑‑‑‑R. 3‑‑‑Non‑acceptance of lowest tender‑‑‑Reasons for non‑acceptance must be recorded; otherwise, action taken being illegal, would stand vitiated. (j) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑S. 44‑‑‑Non‑impleading, of necessary party in Constitutional petition‑‑ Effect‑‑‑Defect of non‑impleading of necessary party in one of the two Constitutional petitions was not cured merely because both Constitutional petitions were heard and disposed of together. (k) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑ ‑‑‑‑S. 42‑‑‑Expunction of adverse remarks recorded by High Court against official respondents while accepting Constitutional petition against them‑‑‑No material was placed on record on basis of which such remarks could be recorded‑‑‑Supreme Court having reached conclusions which were different from the conclusions recorded by High Court, remarks against officials were rendered without foundation and thus were not warranted in circumstances. AJ&K Government v. Zaman Ali Shah PLD 1991 SC (AJ&K) 57 rel. (1) Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983‑‑‑ ‑‑‑R. 3‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑Violation of statutory rule‑‑Rejection of petitioner's lowest tender by officials being in violation of statutory R.3 of Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983, Constitutional petition was accepted and officials (respondents) were directed to allot the work in question, in accordance with law. Civil Appeal No. 51 of 1992 Civil Appeal No. 53 of 1992 Civil Appeal No. 54 of 1992.