P L D 1993 Azad J&K 1 (PLP)

ABDUL MAJEED MALLICK, C J.‑‑‑The petition raises very crucial proposition in respect of administrative, political and geographic status of the Northern Areas. The settlement of the proposition is desired in the manner as to whether Northern Areas formed part of the State of Jammu and Kashmir, on August 15, 1947, at the time of emergence of Pakistan (independence of the sub‑continent) and earlier. In case of positive answer, whether these areas should be annexed to Azad Jammu and Kashmir and be brought under the administrative control of Azad Government of the State of Jammu and Kashmir, is the main relief sought in the petition. Resting the controversy on the aforesaid premises, it is desired that direction may be issued to the Government of Pakistan, through Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad, to explain as to under what authority of law, it administered the said areas; to direct the Azad Government of the State of Jammu and Kashmir to take over administration of the areas and to create administrative and judicial machinery therein by providing due representation to the people of the areas in the Azad Jammu and Kashmir Legislative Assembly and the Council, and restoration of civil liberties and rights admissible to the people of Azad Jammu and Kashmir.

2. Malik Muhammad Miskeen and Haji Amir Jan, residents of Tangir, District Dia Mir (Northern Areas) and Shaikh Abdul Aziz, Advocate, Muzaffarabad, have jointly invoked the writ jurisdiction of this Court, wherein it is claimed that the petitioners are bona fide citizens of the State of Jammu and Kashmir (State Subjects). By virtue of their status, it is alleged, the petitioners are eligible to approach this Court for the redress of their grievance.

3. It was explained that the State of Jammu and Kashmir, prior to August 15, 1947, was administratively divided into (i) Jammu Province, (ii) Kashmir, (iii) Ladakh and (iv) Gilgit. Gilgit was leased out by the then earstwhile ruler of the State (Maharaja Hari Singh) in favour of British Government of India through a lease‑deed executed on March 26, 1935. The administration of the areas was controlled by the British Government in terms of the said lease‑deed. On August 1, 1947, these areas were restored to the State Government. Brigadier Ghansara Singh of the State Army was appointed as Administrator. He was overthrown and arrested by the locals of the area during the war of liberation in 1947. After liberation of these areas by the local people, an agreement was entered into between the Government of Pakistan, Azad Kashmir Government and All Jammu and Kashmir Muslim Conference, on April 28, 1949, whereby certain functions were divided and the administrative control of Northern Areas was entrusted to the Government of Pakistan. The said agreement lapsed on enforcement of the Azad Jammu and Kashmir Government Act, 1970, subsequently substituted by the Azad Jammu and Kashmir Interim Constitution Act, 1974.

4. In support of the claim of the petitioners, it was stated that the geographical status of Northern Areas, for being integral part of Jammu and Kashmir State (as it existed on August 15, 1947 at the time of independence of the sub‑continent and emergence of sovereign States of Pakistan and India), was acknowledged, among others, by the provisions of the Sino‑Pakistan Agreement of 1963. Reference was made to the provisions of the Constitution of Pakistan, 1973, to establish that these were not part of Pakistan. It was further alleged that the Northern Areas formed part of Azad Jammu and Kashmir as defined in the Interim Constitution Act, 1974, as the same were liberated by the local people from the Dogra Army. In that respect, reference was also made t4 the preamble of the Interim Constitution Act, 1974. It was Claimed that the Northern Areas were being administratively controlled by respondent No.1 without any lawful authority and the State Subjects residing in those areas were being dealt with in an uncivic manner as no democratic institutions were established there. The Azad Government of the State of Jammu and Kashmir, it was claimed, failed in its duty and Constitutional obligations to acquire its administrative control of the areas and to provide' civil facilities to its, citizens living in the said areas. The petitioners also referred to their efforts in approaching the authorities in Pakistan and Azad Jammu and Kashmir for the redress of their grievance, without success, and claimed that they were constrained to invoke the jurisdiction of this Court under the aforesaid conditions.

5. The Government of Pakistan repudiated the claim of the petitioners and opposed the grant of relief in exercise of writ jurisdiction. It was averred that the jurisdiction of this Court was confined to limited area pertaining to the territory of Azad Jammu and Kashmir as defined in section 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, as such its writ could not run beyond the said territory. It was explained that the Government of Pakistan, to whom the writ was sought to be issued, was not functioning or operating within the territory of Azad Jammu and Kashmir, as such it was not amenable to the jurisdiction of this Court. It was stated that the proposition raised in the petition is of political nature. This is not likely to be resolved through a writ petition. The objection of absence of necessary party was also raised. In answer to questions raised in the petition, it was alleged that the petitioners Nos.1 and 2 were not the residents of Jammu and Kashmir. The geographical administrative division of the State in four parts, as alleged in the petition, was denied. The fact that Gilgit area was transferred to the British Indian Government on lease executed on March 26, 1935 and its restoration on August 1, 1947 and appointment of Brigadier Ghansara Singh as Governor of the area was not controverted for its being irrelevant to the real question in controversy. Likewise, the execution of agreement between the Government of Pakistan, the Azad Kashmir Government and All Jammu and Kashmir Muslim Conference on April 28, 1949, whereby the administrative control of Northern Areas was delivered to the Government of Pakistan, was denied. However, the execution of Sino‑Pakistan Agreement of 1963 was admitted. It was explained that the provisions of the aforesaid agreement have no bearing on the legal and Constitutional aspect of the proposition. In reply to para No.9, it was accepted as true that the Northern Areas do not form part of the territory of Pakistan as defined in the Constitution of 1973. However, it was explained that despite that, these areas were not part of the territory of Azad Jammu and Kashmir. It was further averred that the Government of Pakistan was actively seized with the question of Constitutional status of the areas and it was assumed hopefully that the dispute shall be settled in the near future. The Government of Pakistan prayed that the petition may be dismissed for its being legally incompetent and without any merit. Reference was also made to a writ petition titled "Qurban Ali and others v. Pakistan and others" pending before the Lahore High Court, Rawalpindi Bench.

6. The Azad Government of the State of Jammu and Kashmir, in its written statement, averred that the petition in the present form was not maintainable. It was explained that some unnecessary parties were impleaded, as such the petition was not maintainable for misjoinder of parties. It was admitted that the Northern Areas were historically part of Jammu and Kashmir State and the administration of these areas was being controlled by the Government of Pakistan in the light of the agreement entered into between the Government of Pakistan and the Azad Government of the State on April 28, 1949. It was further explained that the letters addressed by the President and Prime Minister of Azad Jammu and Kashmir and Press statements issued by them, were a clear manifestation of the fact that the President of Azad Jammu and Kashmir was of definite view that the Northern Areas were part of Jammu and Kashmir. The written statement was signed by the Advocate- General who was instructed through a letter, No. MQ/3518‑24/91 of November 10, 1991. The letter is reproduced:

7. The All Jammu and Kashmir Muslim Conference is also a party to the petition as respondent No.3. The written statement addressed by the Party has been signed and verified by Mr. Abdur Rashid Abbasi. In its written statement, the Muslim Conference has opposed the petition for want of jurisdiction to grant the requisite relief. It was further explained that in view of the agreement referred to above, executed on April 28, 1949 between the two Governments, this Court was not competent to grant the desired relief. On facts, paras 1, 2 and 3 of the petition were admitted as correct. It was elaborated that on the 28th of October, 1947, Gilgit area was liberated by the Gilgit Scouts with the assistance of the State Army and the administration of the area was taken over by the State Officers. In reply to para 4, it was averred that on enforcement of Azad Jammu and Kashmir Government Act, 1970, followed by the Azad Jammu and Kashmir Interim Constitution Act, 1974, the administrative control over the Northern Areas, in view of the Constitutional provisions, vests in the Azad Government of the State of Jammu and Kashmir. In answer to the proposition raised in para 8 of the petition, by accepting the averments made therein as correct, it was explained that even if the preamble or definition of the term "Azad Jammu and Kashmir" does not cover the Northern Areas, these areas are disputed territories awaiting the final settlement through a plebiscite in the 1i‑ht of the UNCIP Resolutions. The averments in para 10 were admitted as correct. It was averred that on enforcement of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the administrative control of the Northern Areas should have been restored to the Azad Government by putting an end to the previous agreement of 1949. It was further explained that the Azad Government was unable to take over the administrative control of the areas unilaterally, unless the Government of Pakistan handed over the said control to this Government. The position taken by respondent NV.3 was supported by reference to letter No.PS‑400/89 of March 17, 1989 addressed by President of Azad Jammu and Kashmir to the President of Islamic Republic of Pakistan. The relevant excerpts of the letter are: "The two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations with Government of the People's Republic of China on the boundary, as described in Article 11 of the present Agreement, of Kashmir so as to sign a boundary treaty to replace the present Agreement: Provided that in the event of that sovereign authority being Pakistan, the provisions of this Agreement and of the aforesaid Protocol shall be maintained in the formal treaty to be signed between Pakistan and the People's Republic of China." Source : (Dawn, Karachi, March 3. 1963)." "(i) It is not necessary for me to point out the evident fact that the territory of Jammu and Kashmir is not a part, integral or otherwise, of the territory of the Indian Union. The territory of Jammu and Kashmir belongs to the people of Jammu and Kashmir. It is a territory the future of which must be decided in accordance with the United Nations Commission's resolution of 13th August, 1948, and 5th January, 1949, that is, through an impartial plebiscite under the auspices of the United Nations to determine its accession to India or Pakistan. Inasmuch as both India and Pakistan are bound by these resolutions it is outrageous for one party to assert any claim to sovereignty over Jammu and Kashmir. The claim, which is familiar to the Security Council, has never been recognised by that principal organ of the United Nations. (ii) My Government is bound by its duty to declare before the Security Council that, pending determination of the future of Kashmir through the will of the people impartially ascertained, no position taken ox adjustments made by either of the parties to the present controversy between India and China or any similar controversy in the future shall be valid or affect the status of the territory of jammu and Kashmir laid down in the resolutions of 21st April 1948, 30th March, 1951, 24th January, 1957, and in resolutions of the United Nations Commission for India and Pakistan, dated 13th August, 1948, and 5th January, 1949, which have been jointly accepted by both India and Pakistan and by which both Governments, according to their repeated declarations, stand engaged." "The Boundary Agreement (between Pakistan and China) does not affect the status of the territory of Jammu and Kashmir. It does not affect the imperatives of demilitarization of the State. It does not derogate one jot or tittle from the right of self‑determination of the people:" It was concluded that respondent No. 3 has no objection if the relief prayed for is granted to the petitioners by issuing an appropriate writ.

8. Mr. Abdur Rashid Tarabi, Amir Jamaat‑e‑Islami, Azad Jammu and Kashmir, respondent No. 8, in his written statement, admitted all the averments 'made in the petition. His answers to paras. 4, 8 and 12, being important to the proposition under consideration, are hereby reproduced:

9. Mr. Muhammad Abdul Khaliq Ansari, President, Jammu and Kashmir Plebiscite Front, respondent No. 10, has categorically admitted the claim of the petitioners and. prayed that the petition may be granted by issuing an appropriate writ. The written statement is accompanied by an elaborate statement relating to history of the Northern Areas, along with references to various authorities (books). It spreads over 79 pages. A supplementary statement, spreading over 35 pages, was also submitted by the respondent, along with photostat of references, in support of facts listed therein. The references are described as :

10. Mr. G. M. Mir, President, National Liberation Front, in his written statement, also supported the petition and submitted that the desired relief may be granted by issuing an appropriate writ. The written statement, spreading over 41 pages, consists of various references, as under : GEOGRAPHY

1. Rand McNalley Historical Atlas of the World Map of Asia, 1900 and 1950. G‑I/A, G‑1/B

2. Map inside title of History of Struggle in Kashmir, by Prem Nath Bazaz. G‑2

3. Basic Information in Maps, Ministry of Kashmir Affairs. Government of Pakistan. G‑3

5. India's Frontiers with China, from the book 'Tibet Disappears', by Chankya Sen. G‑5

6. Map attached with `Pak‑China Boundary Agree ment, (Keesing's Contemporary Archives), p. 19429. G-6

7. Oxford School Atlas (Oxford University Press). G‑7/A,B,C,D

8. Descriptive Map of UN. G‑8

9. World Atlas Bartholomew, page 60, Punjab and Kashmir. G‑9

10. Collins Atlas of World History, 1947‑

87. G‑10

11. Phillips Modern School Atlas, 1941, India, Burma & Ceylon. G‑11

12. The New Oxford Atlas India, Burma and Ceylon. G‑12

13. The New Oxford Atlas, South Asia. G‑13

14. Encyclopaedia Brittanica (Gilgit). G‑14 HISTORY GILGIT AGENCY LIBERATION MOVEMENT

24. GILGIT BEFORE 1947, by Brig. Ghansar Singh. L-22

25. KASHMIR SAGA by Sardar M. Ibrahim Khan. L-23 UNITED NATIONS

27. ABC of Kashmir's Bid ('or Freedom, by Nafis‑ur Rehman & A. G. Soofi. UN-25

29. HISTORY OF STRUGGLE FOR FREEDOM IN KASHMIR (pp. 624‑625). Prem Nath Bazaz. UN-27 PAKISTAN'S STAND

30. FRIENDS NOT MASTERS, by Ayub Khan. P-28

32. MAG. WEEKLY (Dated July 1‑7‑1982) Zia on Peace in the Region. Interview by M. J. Akbar (Editor SUNDAY). P-30 CONSTITUTIONAL ASPECT

37. Constitution of the Islamic Republic of Pakistan. 10‑4‑1973. P-35

38. Resolution Passed on 30‑3‑1951 by U. N. Security Council. C-36

39. KASHMIR DISPUTE, Vol. I, Bureau of National Research and Reference, Government of Pakistan. C-37 SOCIAL. CULTURAL AND RELIGIOUS MISCELLANEOUS

11. Azad Jammu and Kashmir Peoples' Party, Jammu and Kashmir Liberation League, Azad Jammu and Kashmir Muslim Conference, Azad Jammu and Kashmir Tehrik‑e‑Amal Party and Jammu and Kashmir Liberation Front, respondents Nos. 4, 5, 6, 7 and 9 respectively, failed to turn up. They were proceeded ex parte. Mr. Amanuallh Khan appeared during the arguments but written statement was not furnished.

12. Azad Jammu and Kashmir Muslim Conference and Azad Jammu and Kashmir Tehrik‑e‑Amal Party were dissolved during the pendency of the petition, as such their names are struck off from the list of the respondents.

13. In view of the spirit of controversy raised in the petition, it is deemed expedient to have an appraisal of historical background of emergence of the State of Jammu and Kashmir, as it existed at the time of independence of the sub‑continent. Fortunately, the history of Kashmir State, spreading over last five thousand years, has been well preserved. Numerous books have been written by celebrated writers of the State, Indo‑Pakistan, Europe and America. Foreign historians, scholars, saints, jurists and travellers were invariably attracted by the scenic beauty of the State. Many of them accompanied invaders. They could not resist the expression of their sentiments and praise of natural beauty of Kashmir. They listed their experience and impressions in their treatises. This is just to suggest that ample literature, relating to past history of the State, is readily available. It is least necessary to go into lengthy thesis and reports, as suffice it to recapitulate the relevant events resulting in the constitution of the modern State of Jammu and Kashmir. There is agreement that the territorial limits of the State, at times, stretched to the heart of India, inclusive of Punjab and Frontier Provinces, upto Afghanistan. Invariably, these limits squeezed under different pressures of invasions, leading to redemarcation of boundaries of the adjoining States. Under Muslim rule, the State attained its glory and lustre during the regime of Sultan Shahab‑ud‑Din and Zain‑il‑Abedin alias Badh Shah. Sultan Yusuf Shah Chak was the last ruler of the State. He was dethrowned and imprisoned by the forces of the Mughal Emperor, Akbar, and the State was annexed to Mughal empire in the sub‑continent. In 1752, on decline of Mughal empire, Ahmad Shah Abdali of Afghanistan conquered the State. In 1819, it was annexed to the Sikh State with its capital at Lahore.

14. Maharaja Gulab Singh, the founder of Dogra dynasty, was a local feudalist of Jammu. He was rewarded by Lahore Darbar, under Sikh rule, for helping them in the expedition of Kashmir. On acquisition of a Jagir in Jammu, he manoeuvred to extend his influence in Ladakh, Baltistan and adjoining areas, in between 1837 and 1839. This was the time when the East India Company was also engaged in extending its dominion in northern parts of India to accomplish its ambition to rule over the sub‑continent. As a result of combatment between the East India Company and Sikh forces, the Sikh Army was defeated and the British forces occupied Lahore. On truce, a treaty was signed between the British Government and the State of Lahore, on March 9, 1846. By virtue of the terms and conditions of the treaty, envisaged in Article 4, the British Government demanded from Lahore Darbar an indemnification for the expenses of war, in addition to cession of the territory described in Article 3, and payment of one and a half crore rupees. The Lahore Government being unable to pay whole of the amount or to give satisfactory security, ceded to the East India Company, in perpetual sovereignty, as equivalent of one crore of rupees, all its forts, territories, rights and interests in the hill countries which were situate between the rivers Beas and Indus, including of Kashmir and Hazara. Gulab Singh, a crafty politician and soldier, had already gained confidence of the British authorities by collaborating with them during the war against Sikh army. Apparently, he demonstrated his neutral role and on defeat of the Sikh army assumed the role of a mediator. Thus, he exploited the situation by offering to pay the amount of indemnity in the sum of rupees seventy‑five lacs (Nanak Shahi) for the transfer of Kashmir State. In view of the aforesaid conspiracy, the British authorities introduced one of the conditions in the treaty whereby Maharaja Dalip Singh of Lahore State was made to agree to recognise independent sovereignty of Raja Gulab Singh in such territories and districts in the hills as may be made over to him by a separate agreement between himself and the British Government, including dependencies which were in possession of Gulab Singh since the time of late Maharaja Kharak Singh. The British Government also agreed to recognise his independence in such territories, in consideration of his good conduct. He was to be admitted to the privileges endorsed in the treaty by a separate treaty with the British Government.

15. On March 16, 1846, another treaty was signed between the British Government and Maharaja Gulab Singh of Jammu, at Amritsar. The British Government, by virtue of treaty of Amritsar, transferred and made over for ever, in independent possession of Maharaja Gulab Singh and heirs male of his body, all the hilly or mountanous country with its dependencies situate to the eastward of river Indus and westward of river Ravi, including Chamba and excluding Lahul, which were ceded to the British Government by the Lahore Stale under the provisions of Article 4 of the treaty of Lahore. In the light of terms of the treaty Maharaja Gulab Singh agreed to pay to the British Government sum of seventy‑five lacs of rupees (Nanak Shahi) on or before Is: of October, 1846. Maharaja Gulab Singh, by virtue of Article 10 of the treaty of Amritsar, acknowledged the supremacy of the British Government and in token of such supremacy, agreed to present annually to the British Government one horse, 12 perfect shawl goats of approved breed (6 male and 6 female) and three pairs of Kashmir shawls. Thus, the State of Jammu and Kashmir emerged as such by virtue of treaty of Amritsar. Areas lying on the right bank of river Indus were annexed during the rule of Ranbir Singh, son of Gulab Singh. The annexation of these areas was approved by the British Government of India. The final shape of Jammu and Kashmir State, therefore, was articulated during the regime of Ranbir Singh. It was administratively divided into provinces of: (i) Jammu; (ii) Kashmir; (iii) Ladakh and , (iv) Gilgit and Frontier Illaqas. (Frontier Illaqas comprised of: (i) Hunza; (ii) Nagar; (iii) Punial; (iv) Yasin; (v) Kuh; (vi) Ghizar; (vii) Ishkoman; (viii) Chilas, with an area of 14,680 sq. miles.) At present, Gilgit, Baltistan and former Frontier Illaqas are designated as `Northern Areas.

16. The Kashmir State spreads over 84,471 sq. miles. The area of Jammu province was 12,378 sq. miles; Kashmir province 8,539 sq. miles and Ladakh, Gilgit and Northern Areas 63,554 sq. miles. According to the census of 1941, the total population of the State was 4,021,

616. Muslims were 78.11%, Dogra Hindus 20.12% and Sikhs and others 1.64%. The province wise population was: (i) In Jammu province, total population was 1,981,433; Muslims were 61% and Hindus 39%; (ii) In Kashmir province, Muslims were 93.7% in a total population of 1,728,

705. The aforesaid facts and figures find support from the book "Danger in Kashmir" by Josef Korbel. (Dr. Josef Korbel was member of the United Nations Commission for India and Pakistan, first time constituted by the Security Council. He was nominee of India. His book "Danger in Kashmir" highlights geopolitical and strategical position of Jammu and Kashmir State, resulting in conflict between India and Pakistan, as acknowledged at the forum of the United Nations). Other well‑known references are "The Kashmir Saga" written by Sardar Muhammad Ibrahim Khan, founder President, Azad Government of Jammu and Kashmir State, "Crisis in Kashmir" by Professor Alastair Lamb, "Kashmiris Fight for Freedom" by Muhammad Yusuf Saraf, former Chief Justice, A.K. High Court, "Inside Kashmir" by Prem Nath Bazaz, and Census Report of 1941.

16. Under the later Muslim rule, Kashmir State received great impetus in industries, trade, horticulture and architecture. Srinagar became a great centre, of trade where people from Tashkent and India flocked in large numbers. It was during the period of its national independence that Kashmir had a standing army of its own. Thus, in the course of time, Kashmir developed military traditions and won laurels in many a battlefield. They overran the Sind valley and crossed Hindukush. Punjab, Western Tibet and Kulu valley formed part of Kashmir dominion. Embassies represented the Kashmir State in Turkey, Azar Baijan, Egypt, Delhi and Gujarat.

17. As a result of foreign subjugation, Kashmir lost all its lustre and glory. In the beginning of 18th century, Kashmir suffered a lot by oppression of conquerors and warriors. Thus, Kashmiris were reduced to a very low status. Sikh rulers treated them little better than cattle. William Moorcraft described the position as: "I have been in many lands, but nowhere did the condition of human beings present a more saddening spectacle than in Kashmir". In "Narrative of a Mission to Bukhara", the author described the condition of Kashmiri people, under Sikh regime, as: "I left Kashmir on October 21, 1832. On our road, we were accompanied by fugitives flying from the oppression of Ranjit Singh. Women walking, destitute of every thing, carrying their children on their backs. They told me in their powerful language that they inherited the beauty of angles but all their beauty had withered in the dominion of Sikhs."

18. The Dogras ruled the people of the State with iron hands. They excluded Muslims from all services. The Hindus had the monopoly of trade. The land produce was subjected to heavy taxation like trade and other professions. The wealth of forests and mines was the exclusive preserve of the Government. Land revenue was three times higher than in force in the neighbouring Punjab. The sale of Silk, paper, tobacco, salt, saffron and grains was monopolised by the State. The law discriminated against the Muslims as they could not carry fire‑arms without licence. Cow‑slaughter was a penal offence. Of the 28 Prime Ministers, not a single was Muslim. Out of 13 battalions of the State army, not one was Muslim. This account finds ample support from "Inside Kashmir" by Prem Nath Bazaz.

19. The aforesaid account reflects the administrative, political and economic conditions of the State and its people, under the Dogra dynasty. But despite acute repressive conditions, the Muslims of the State resisted their servitude and subjugation. Their resistance was invariably ignored by the brute forces of autocrat ruler. Despite that, the voice of agony of Kashmiris travelled to neighbouring Punjab and Central India. The misery of Kashmiris also received attention of the travellers, tourists and journalists.

20. Muslim masses got awareness and awakening particularly in early twenties and thirties of twentieth century. They voiced their grievances through memorandums addressed to the Viceroy of India. They were supported in their voice by the Muslims of neighbouring Punjab. Muslim Conference and Kashmir Committee, organised in Lahore, rendered great services to the cause of the oppressed Kashmiris. The wave of actual awareness came when educated Muslims of Srinagar and Jammu city organised themselves in the style of "Reading Room Part" and "Young Men's Muslim Association". They demanded their share in the State services. Speeches were made in Jumma prayers and other public meetings. The political awakening assumed a concrete shape in 1931. One Abdul Qadeer, a non‑State Muslim, was detained on the charge of sedition. He voiced the grievances of Kashmiri Muslims in a public speech. He was arrested and his trial was being held inside Srinagar jail. The Kashmiri Muslims demanded an open trial of Abdul Qadeer. In order to enter the jail to witness the trial, they surrounded the Central jail. The police opened fire, by killing 21 persons and wounding many others. This occurred on July 13 thus, the day of July 13 assumed an historical day as "Martyrs' Day" in the history of Kashmir.

21. Kashmiris organised themselves in the name and style of All Jammu and Kashmir Muslim Conference in 1932. Muslim Conference advocated the cause of the Muslims of the State until it was converted into National Conference in 1939. It was revived in 1941 after the passing of the Lahore Resolution (Pakistan Resolution) on March 23, 1940. Since then, both the political parties worked for the liberation of Kashmir, restoration of basic rights and civil liberties of the people of the State, from the rival platforms. The National Conference allied itself with the objectives of the All India Congress whereas the Muslim Conference became an ally of the All India Muslim League and pursued its objectives.

22. On announcement of independence of the sub‑continent on June 3, 1947, the Muslims of the State demonstrated their voice in favour of accession of the State to Pakistan. On July 19, 1947, the Muslim Conference, in its meeting held in Srinagar, declared its desire to accede to Pakistan. The decision of the Muslim Conference, in the shape of its resolution, is reproduced:‑ "(1) This, meeting of All Jammu and Kashmir Muslim Conference Convention expresses its satisfaction and congratulates the Quaid‑i Azam for his achievement. (2) The people of the Indian States expected that they would walk shoulder to shoulder with the people of British India in the attainment of freedom. On the partition of India the people of British India have obtained independence but the announcement of June 3, 1947, has strengthened the hands of the Indian Princes and unless the Princes respond to the call of the times, the future of the people of the Indian States is very dark. There are only three ways open to people of Jammu and Kashmir State:‑‑ (1) To accede to India, or (2) To accede to Pakistan, or (3) To remain independent. The Convention of the Muslim Conference has arrived at the conclusion that keeping in view the geographical conditions, 80 per cent Muslim majority out of total population, the passage of important rivers of the Punjab through the State, the language, cultural and racial, economic connection of the people and proximity of the borders of the State with Pakistan, are all facts which make it necessary that the Jammu and Kashmir State should accede to Pakistan."

23. It is relevant to recapitulate the scheme of independence of the sub continent, to enable to appreciate the conflict of Kashmir, relevant to the proposition under consideration. The political forces in the sub‑continent were divided into All India Congress (hereinafter referred to as Congress) and All India Muslim League (hereinafter referred to as the League). The leadership of Congress pursued independence of the sub‑continent as one unit. Conversely, the League demanded creation of Pakistan by partition of India. Efforts were made at diplomatic and political levels to attain conciliation, between the rival leadership of the sub‑continent, but without success. Thus, in the light of demand of the rival parties, the scheme of independence of the sub‑continent was pronounced by the British Government, through the Viceroy of India, on June 3, 1947.The scheme was given a statutory form in the name of the Independence Act, 1947. The Act was promulgated by the British Parliament for setting up two independent dominions, viz. (1) Indian Union and (2) Pakistan. Thus, both the dominions were to emerge on August 15, 1947 as successor to the Government of British India. The partition of the sub continent was to take place on the basis of two‑Nation theory, meaning thereby that the Muslim majority areas were to form part of Pakistan and the rest that of Indian Union.

24. Prior to the Independence Act, the Government of India, 1935 envisaged a scheme of accession of Princely States to the British India. On the same pattern and style, advice was tendered by the Viceroy of India to the Princes. He addressed the Chamber of Princes in Delhi on July 25, 1947. The Princes were advised to accede to either of the dominions of their choice. Nevertheless, it was advised that while deciding the question of accession, the rulers should keep in view : (i) the geographical proximity; (ii) the welfare of the State and (iii) the views of majority of the people of the State.

25. The rulers of the States of the sub‑continent somehow decided the accession of their States to either of the dominions, except the Nizam of Hyderabad and the Maharaja of Kashmir State.

26. The proposition under consideration is an offshoot of the Kashmir dispute, as the ruler of the State failed to take timely decision by acceding to either of the dominions before August 15, 1947. The decision was delayed deliberately to reduce the majority of the Muslim population by resort to large scale genocide on the pattern of States of Kapurthalla, Faridkot, Patiala, Bharat Kapur, Alwar and Gwalior. In all these States, a pre-planned extensive campaign of genocide was directed against the Muslim population. An indentical drama was to be staged in the State and, in fact, in south‑eastern part of Jammu, Kathua and Akhnoor, action of genocide was initiated by the State forces, assisted by bands of Sikhs and Hindus. A wave of terror thus ran throughout the State. In such a situation, the Muslims of the State, particularly the ex‑soldiers who had served in the Second World War, organised themselves into small units and decided to make a final bid for liberty. Thus, several thousands of Muslims of the State, particularly. in the areas of Poonch and Mirpur, decided to struggle against the brute forces of the State. In lieu of their sacrifices, areas of district Mirpur, Kotli, Rawalakot, Bagh, Poonch, Gilgit, Baltistan and Frontier areas were liberated. The Muslim forces set up an Azad Government on October 24, 1947, which took over the administrative control of these areas, in addition to freedom movement. The administrative control of Gilgit, Baltistan and Frontier areas was taken over by the Pakistan Government. This action was subsequently ratified by an agreement executed between the Government of Pakistan and the Azad Government of the State of Jammu and Kashmir, endorsed by the President of All Jammu and Kashmir Muslim Conference, in April, 1949. Since then, the administrative control of the areas has been continuously with the Government of Pakistan. As the people of these areas were not associated with the administration nor they were given due representation in the Assemblies, it was realised, with the passage of time, that these people were deprived of their basic human rights, including the right of representation and administration. Thus, an effort was made to seek redress of their grievances at various Government and political levels. On failing to attain the desired results, the controversy was raised before this Court in the shape of the present petition.

27. It is well known that civil liberties remained suspended in the parts of all liberated territories of the State for a considerable time when, for the first time, in 1960, limited franchise was introduced in Azad Jammu and Kashmir. It was subsequently suspended for some time. In 1970, however, for the first time, a Constitutional Act in its proper form was enforced. The writ jurisdiction was conferred on this Court in 1972. In 1974, the Act of 1970 was modified and the Azad Jammu and Kashmir Interim Constitution Act, 1974 was enforced.

28. In Northern Areas, however, on account of separate administrative set up, the provisions of the Interim Constitution Act were not extended. The political leaders, parties, the President, Prime Minister and members of the Assembly of Azad Jammu and Kashmir invariably demanded integration of the Northern Areas with Azad Jammu and Kashmir and extension of the Interim Constitution Act to that end. The people of the Northern Areas were deprived of the civil liberties and basic rights, on account of delay in settlement of the Kashmir problem. The settlement could not be reached on account of obduracy of India. Here it may not be out of context to recapitulate the political developments in the sub‑continent relating to accession of disputed States, namely, Junagadh, Hyderabad and Kashmir.

29. The ruler of Junagarh was Muslim. The predominant population of the State was non‑Muslim and geographically it was contiguous to Indian Union. The ruler announced the accession of the State to Pakistan. The Pakistan Government accepted the accession. The Indian rulers occupied the State forcibly and thereafter reference was made to the State Subjects in the shape of plebiscite. In February, 1948, the Hindu majority population of the State voted in favour of India and against Pakistan. Thus, the forcible annexation of Junagadh was ratified by a plebiscite:

30. The Nizam of Hyderabad decided to remain independent. This was disliked by the Indian rulers and the leadership of Congress. The economic blockade made by India was followed by military occupation of Hyderabad in September 1948. The military occupation of Hyderabad was not sought to be ratified by a plebiscite through a reference to the people of the State.

31. In case of Kashmir, the position was quite‑ converse to that of Junagadh, as here the ruler was a Hindu Maharaja, the population was predominantly Muslim and geographically the State was contiguous to Pakistan. The Maharaja hesitated the decision of accession of the State. He hatched a conspiracy with the Congress leadership as he was in direct contact with Mr. Patel, the then Deputy Prime Minister of the Indian Union. Secret and discreet steps were undertaken to manoeuvre territorial links of the State with India. Senior leaders of Congress, including Mahatma Gandhi paid visits to the State as State guests. Lord Mountbatten also visited the State to influence the Maharaja to secure accesssion of the State to India.

32. In addition to political manoeuvring, State forces in Patiala were also despatched to Kashmir to help the State forces to maintain law and order. On the other hand, as a deception, on August 12, a Standstill Agreement was proposed both to India and Pakistan. Pakistan accepted the proposal whereas India avoided it, on the pretext of direct negotiations at the ministerial level.

33. As the Pakistan Government and leadership was deeply occupied in the establishment of administration of the new dominion, settlement of refugees and other national issues, an organised genocide of the Muslims of the State was planned by fanatic Hindu and Sikh forces. Trained Hindu and Sikh gangsters were brought in the State. They were distributed arms. Muslims were disarmed. Additional military cantonments and posts were established in Jammu, Kathua, Samba, Mirpur and Poonch, and entire frontier common with Pakistan territory was sealed. In the first week of September, large scale genocide operations were started. The Muslims in Samba, Kathua, Udhampur and Jammu were subjected to sudden attacks. Over quarter of a million were killed and more than a quarter million were forced to migrate to Pakistan. `Times of London', in its publication of October 10, 1948, reported: "Over a quarter million Muslims were massacred in Jammu Province alone. The orgies of bloodshed were initiated by the hired gangsters imported by the State administration, with State troops looking on as unconcerned spectators, at times and on occasions by the troops themselves with the Maharaja heading them at quite a few places:"

34. On apprehending the nefarious designs of the Maharaja and the State authorities, the Muslims of the State were alarmed. In a state of terror, they organised themselves. The lot who had served in the Second World War, raised regiments and undertook an armed struggle against the forces of Maharaja. They were reinforced by the neighbouring Muslims from Punjab, North‑West Frontier Province and tribesmen. Mirpur, Bhimber, Kotli, Bagh, Rawalakot, Pallandari and Muzaffarabad were liberated. Rajouri and Mehndar, except Poonch city and areas surrounding Naushehra, were also occupied by the freedom‑fighters. Gilgit, Baltistan and Ladakh were also eventually liberated by the local people of the areas, assisted by. Gilgit Scouts and the Muslim soldiers of the State army. On October 24, 1947, revolutionary Government was formed. The revolutionary Government assumed the charge of armed struggle and also undertook the establishment of administration to restore law and order in the liberated territory.

35. Maharaja Hari Singh, who deserted Srinagar, took refuge in Jammu. On giving a final touch to the conspiracy already undertaken, the accession of the State was announced with India. The Governor‑General of India acknowledged the accession provisionally, with the condition that on restoration of law and order, the question of future of Jammu and Kashmir shall be determined by its people in exercise of their free will through a plebiscite under the auspices of the United Nations. The Government of Pakistan lodged a strong protest against the fraudulent accession of the State with India. The Indian Prime Minister, through telegraphic messages addressed to the Prime Minister of Pakistan, assured the settlement of future of the State by a reference to its people. The telegraphic messages addressed by the Prime Minister of India to the Prime Minister of Pakistan, during October and November, 1947, are reproduced: In telegram of October 26, 1947, from Jawahar Lal Nehru to the British Prime Minister, Clement Attlee, in para 3, it was assured: "I would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of people and we adhere to this view." The Prime Minister of Britain, in his message to the Prime Minister of Pakistan on October 27, 1947, repeated the words of the Prime Minister of India, as: "He adds that he would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way. to influence the State to accede to India." In telegram of October 28, 1947 to Mr. Liaquat Ali Khan, Mr. Nehru reiterated: "In regard to accession also it has been made clear that this is subject to reference to people of State and their decision. The Government of India have no desire to impose any decision and will abide by people's wishes." In telegram of October 31, 1947 to the Prime Minister of Pakistan, the Prime Minister of India reasserted, in para 7, as: "Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of this State to people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world." In his telegram of November 4, 1947 to the Prime Minister of Pakistan, Mr. Nehru said: "I wish to draw your attention to broadcast on Kashmir which I made last evening. I have stated our Government's policy and made it clear that we have no desire to impose our will on Kashmir but to leave final decision to people of Kashmir. I further stated that we have agreed on impartial international agency like United Nations supervising any referendum. This principle we are prepared to apply to any State where there is a dispute about accession."

36. In his telegram of November 8, 1947 to the Prime Minister of Pakistan, Mr. Nehru, Prime Minister of India, in para 10, said: "It will thus be seen that our proposals which are repeatedly stated are: (1) that Government of Pakistan should publicly undertake to do their utmost to compel the raiders to withdraw from Kashmir; (2) that Government of India should repeat their declaration that they will withdraw their troops from Kashmir soil as soon as raiders have withdrawn and law and order are restored; (3) that Government of India and Pakistan should make a joint request to U.N.O. to undertake a plebiscite in Kashmir at the earliest possible date. The above conclusions relate only to Kashmir, but it is essential, in order to restore good relations between the two Dominions, that there should be acceptance of principle that, where Ruler of a State does not belong to community to which the majority of his subjects belong, and where the State has not acceded to that Dominion whose majority community is same as State's the question whether State has finally acceded to one or other Dominion should be ascertained by reference to the will of people."

37. On failing to settle the dispute bilaterally India took the matter to the United Nations. Both India and Pakistan made allegations and counter -allegations in the Security Council. Pakistan's reply to the Indian allegations and its counter‑allegations against India was sent through a letter to the Security Council on January 15, 1948. On that day, Mr. Gopalaswami Ayyangar, the Indian representative, made his policy statement in the Security Council and emphasised: "We desire only to see peace restored in Kashmir and to ensure that the people of Kashmir are left free to decide in an orderly and peaceful manner the future of their State. We have no further interest, and we have agreed that a plebiscite in Kashmir might take place under international auspices after peace and order have been established. The question of the future status of Kashmir vis‑a‑vis her neighbours and the world at large, and a further question, namely, whether she should withdraw from her accession to India, and either accede to Pakistan or remain independent, with a right to claim admission as a Member of the United Nations all this we have recognized to be a matter for unfettered decision by the people of Kashmir, after normal life is restored to them."

38. The Security Council, on hearing both sides and appreciating the scenario in Kashmir, passed its resolution on January 17, 1948. It was supplemented by a detailed resolution on January 20, 1948, whereby a Commission of the U.N. was established. It was known as the United Nations Commission for India and Pakistan. It comprised three members, one each to be nominated by India and Pakistan and the third to be nominated by the nominees of these countries. The Commission was directed to proceed to the spot quickly and to investigate the facts and to report its advice. The scope of authority of the Commission spread over the complaint of India and the counter‑complaint made by Pakistan in its letter of January 15, 1948. On February 6, 1948, the Security Council made an appeal to both parties to agree with a just settlement of Kashmir problem, to put an end to violence and hostilities and to withdraw all regular and irregular forces who entered the State from outside. These resolutions were supplemented by a comprehensive resolution passed on April 21, 1948, and the United Nations Commission for India and Pakistan's resolutions of August 13, 1948 and January 5, 1949. Truce was made on January 1, 1949. Thereafter, the process of demilitarization, as envisaged in the aforesaid resolutions, was obstructed by India on one pretext or the other.

39. The Security Council, members of the United Nations' Commission for India and Pakistan and representatives of the Security Council appointed from time to time, endeavoured their best to persuade the Government of India and its leaders to implement the resolutions by withdrawing her armed forces from the State and holding plediscite. Pakistan Government agreed to all suggestions and cooperated to hold plebiscite in the State. Indian Government, on the other hand, used dilatory tactics by seeking unnecessary explanations from the members of the Commission, in order to gain time, with the intention to frustrate the United Nations Resolutions. Long discussions were held at Delhi, but without success. Ultimately, India declined to cooperate to hold plebiscite as, in its view, the balance of power in the sub continent was disturbed. It also used the elections to the Assembly of Occupied Kashmir as one of the methods, to defeat the efforts of the Security Council for settlement of the dispute. The Security Council, in its utter disillusion by the attitude of the Indian authorities, postponed its proceedings sine die.

40. Hostilities between the liberation forces and the Indian forces once again resumed in August‑September, 1965. In derogation to all international ethics, India attacked Pakistan. The conflict between the two forces culminated in cease‑fire and ultimately in the shape of Tashkent Declaration made on January 5, 1966.

41. In consequence of movement of cessation of East Pakistan and military hostilities initiated by India, once again a truce was effected between India and Pakistan at Simla on July 20, 1972. After the Simla Agreement, Kashmir question was buried in deep cold storage of archives of the Security Council till 1989 when the liberation movement was revived by the youth of Indian‑occupied Kashmir. The upsurge was the result of oppression of Indian administration in Occupied Kashmir, deprivation of basic rights, rigging of general elections, economic recession, rise in unemployment, and usurpation of control of local bodies in the State. The movement was totally indigenous. Large scale genocide, loot and arson, oppression of unarmed Kashmiris at the hand of security forces of India half‑million in size, have given a new dimension to the liberation movement. Thus, Kashmir has come once again in international focus.

42. The proposition, as noticed earlier, confines to geographic, administrative and political status of the Northern Areas. It was alleged that Northern Areas were part of Jammu and Kashmir State. They were liberated by the local people like other areas of the State, popularly known as Azad Jammu and Kashmir, as such Northern areas may be construed on identical pattern as Azad Jammu and Kashmir. The suggestion was advanced to seek extension of the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and administrative control of the Azad Government. We have already examined the emergence of the present State of Jammu and Kashmir, as it existed on August 15, 1947; the development in the liberation movement and liberation movement of the sub‑continent, resulting in emergence of independent States of Pakistan and India; the genesis of the Kashmir dispute, bilateral approach for its settlement and its position in the Security Council, obduracy of India to agree to a settlement of the dispute by implementation of the United Nations' resolutions, the conflict of 1965, culminating in Tashkent Agreement, the cessation of East Pakistan, resulting in Simla Agreement, and the causes of the current upsurge in Kashmir. We have also listed various factors which persuaded the petitioners to invoke the writ jurisdiction of this Court. The main contestant in the petition is the Government of Pakistan, respondent No.

1. We propose to deal with the objections raised on behalf of respondent No. 1 at later stage and proceed to settle the objections raised by the Azad Government of the State of Jammu and Kashmir, respondent No. 2, and All Jammu and Kashmir Muslim Conference, respondent No. 3, at this stage.

43. The term "Northern Areas", as we have examined earlier, applies to and includes Gilgit, Baltistan and Frontier illaqas. Frontier illaqas comprise of: (i) Hunza; (ii) Nagar; (iii) Punial; (iv) Yasin; (v) Kuh; (vi) Ghizar; (vii) Ishkoman; and (viii) Chilas. The Azad Government, in its written statement, admitted that the Northern Areas were part of Jammu and Kashmir State and are presently being administered by the Government of Pakistan by virtue of the agreement of April 28, 1949. However, it opposed the petition: (i) for its non‑maintainability in the present form; and (ii) for impleading some unnecessary parties (misjoinder of parties). It was not elaborated as to how the petition was not maintainable in its present form. The objection relating to misjoinder of parties was also not raised at the time of arguments. As a matter of fact, the learned Counsel for the Government supported the claim of the petitioners.

44. The point of misjoinder of parties refers to respondents Nos.3 to 11, which are the political parties of Azad Jammu and Kashmir. It is true that political parties of Azad Jammu and Kashmir are not necessary parties, as no relief is sought in their favour or against them, but the fact remains that all these parties invariably supported the cause of the petitioners at their political platforms and by making representations to the Government of Pakistan. Respondents Nos. 3, 4, 5, 6 and 7 enjoyed the mandate of the electorate in the Assembly, where they unanimously moved a resolution, as the resolution of the Assembly of Azad Jammu and Kashmir, in support of the claim of the petitioners. That leads to the conclusion that the respondents Nos. 3 to 11 were obviously interested in the result of the petition. Their presence before the Court was of importance as they were in a position to render valuable assistance in the effectual and conclusive settlement of the controversy. Their presence was equally necessary to avoid multiplicity of identical controversies. Thus the respondents were proper party in the case. The objection stands repelled.

45. All Jammu and Kashmir Muslim Conference, respondent No. 3, admitted that the Northern Areas were part of Jammu and Kashmir State. These areas were liberated by the Gilgit Scouts, with the assistance of the State army. It was also agreed that on enforcement of Azad Jammu and Kashmir Government Act, 1970, followed by Interim Constitution Act, 1974, the administrative control over Northern areas vested in the Azad Government. It was accepted that the Northern areas were disputed territories, awaiting final settlement through a plebiscite in the light of the UNCIP resolutions. The agreement of April 28, 1949 was also endorsed. However, the petition was opposed for want of jurisdiction. We propose to decide the question of jurisdiction later on when we take up the objections raised by respondent No. 1 in that perspective. Next we proceed to the points raised by the petitioners and opposed by respondent No.1.

46. The basic point in dispute pertains to geographical position of the Northern areas. It was alleged by the petitioners that the Northern areas were part of Jammu and Kashmir State, as such these are part of the disputed territories. Their future is yet to be settled alongwith other parts of the State in the light of the UNCIP resolutions. This part of the proposition was answered by respondent No. 1 evasively, as it was not controverted specifically and expressly. The point at issue is purely a question of fact and it is to be resolved in the light of the material placed before us. The material sought to be relied upon, comprises of reference books, inclusive of: (i) Census of India, 1911, 1921, 1931 and 1941 pertaining to the State of Jammu and Kashmir; (ii) Maps of the State, published by Public Relations Directorate, Ministry of Foreign Affairs, Government of Pakistan in November, 1951; (iii) Various statutes in force in the State prior to August 15, 1947; (iv) "Danger in Kashmir" by Josef Korbel; (v) "Crisis in Kashmir" by Alastair Lamb; (vi) "Kashmiris Fight for Freedom" by M.Y.Saraf; (vii) "Kashmir Saga" by Sardar Muhammad Ibrahim Khan, founder President of Azad Jammu and Kashmir; (viii) "History of Struggle for Freedom in Kashmir" by Prem Nath Bazaz; (ix) Maps published by Rand McNalley; (x) Historical Atlas of World, 1965, U. S. A.; (xi) India's Frontiers with China, from the book "Tibet Disappears" by Chankya Sen. (xii) Oxford School Altas; (xiii) Descriptive map of U. N.; (xiv) World Atlas Bartholomew, 1985; (xv) Collins Atlas of World History, 1947‑87: (xvi) The new Oxford Atlas 1941 India, Burma and Ceylon; (xvii) The New Oxford Atlas, South Asia; (xviii) The New Encyclopaedia Brittanica; (xix) The Emergence of Pakistan" by Chaudhry Muhammad Ali; (xx) TAAREEKH‑E‑JAMMU by Alhaj Maulvi Hashmatullah Khan Lakhnavi; (xxi) TAAREEKH‑E‑DOGRA DES by Diwan Narsing Das Nargis; (xxii) TAAREEK‑E‑AAZADI by Col. Mirza Hassan Khan; (xxiii) "The Legacy of Kashmir" by Major Arthur Neve; (xxiv) Sino‑Pakistan Treaty executed on March 2, 1963 (xxv) "Gilgit Before 1947" by Brig. Ghansara Singh jamwal; "Kashmir Qestion" Speeches of Sir Zafrullah Khan, Foreign Minister of Pakistan, in the Security Council on February 7, 8 and 9, 1950; (xxvii) "Kashmiris Bid For Freedom" by Nafisur Rehman A.G. Soofi; (xxviii) AALMI SAAMRAJ AUR KASHMIR by Abbas Ahmad Azad; (xxix) "Friends Not Masters" by Field Marshal Muhammad Ayub Khan, President of Pakistan; (xxx) GILGIT AND SHINA ZABAAN by Dr. Namoos; published in 1961; (xxxi) (Shamali Illaqay Adalti Kathray Main) by Muhammad Abdul Khaliq Ansari; (xxxii) A letter addressed to President Ziaul Haq on behalf of All Jammu and Kashmir Muslim Conference, Azad Kashmir People's Patty, Azad Jammu and Kashmir Muslim Conference and Plebiscite Front; (xxxiii) An interview of President Ziaul Haq, published in Sunday Weekly, Calcutta; (xxxiv) Constitution of Islamic Republic of Pakistan; (xxxv) Pakistan Times of November 2, 1947; (xxxvi) Resolutions of the Security Council; (xxxvii) "Inside Kashmir" by Prem Nath Bazaz; (xxxviii) "Tragedy in Kashmir" by A.H. Suhrawardy; etc.

47. We do not propose to cite the relevant parts from the aforesaid sources, as we feel satisfied to quote some of the excerpts from the leading authorities to ascertain the geographical status of the Northern Areas.

48. In Census of India, 1911, Volume XX, Part I, REPORT ON KASHMIR, administrative set up of the State, as divided at the relevant time, was described at page

6. The province of Jammu comprised of: (i) Jammu; (ii) Jasrota; (iii) Udhampur; (iv) Reasi; and (v) Mirpur districts. Kashmir Province comprised of: (i) Kashmir North; (ii) Kashmir South; and (iii) Muzaffarabad. The Frontier districts comprised of: (i) Ladakh; (ii) Gilgit. The internal jagir and dependencies were described as: (i) Poonch; (ii) Bhadarwah; and (iii) Chaneni. In Frontier illaqas, petty chiefships in feudatory relations with the State, were described as: (i) Punial; (ii) Ishkoman; (iii) Yasin (with Kuh and Ghizar); (iv) Hunza; (v) Nagar; and (vi) Chilas. Another village lying in Tibetan territory as an isolated unit, which belonged to the State, was "Mansar village". This administrative description was followed in the subsequent reports for the years 1921, 1931 and 1941. The position which emerged in 1941, vide the Census Report described above, in respect of Frontier districts, was as: (i) Ladakh, with Skardu and Kargil as Tehsils; (ii) Gilgit, with Gilgit Wazarat and Astore as Tehsils: (iii) Frontier illaqas, comprising Punial, Ishkoman, Yasin, Kuh, Ghizar, Humza, Nagar and Chilas.

49. The New Encyclopaedia Britannica, at page 266, described the status of Gilgit as: "GILGIT, town, administrative headquarters of the Gilgit Agency is the Pakistani‑held sector of Jammu and Kashmir State in the north western Indian sub‑continent. Located on the Gilgit river, the town was once a Buddhist centre and now serves as a frontier station for local tribal areas. Its economy is mainly agricultural with wheat, corn (maize), and barley as the main crops. The main south‑west routes to the Srinagar lies through the Babusar Pass at 14,900 ft. (4,540 m). Gilgit agency, with an area of 15,184 sq ml (39,326 sq. km), lies in the Himalayas and is bordered on the south by the Indus river. It is drained by the Gilgit and Hunza rivers. In 1934 the region was divided into Gilgit leased area and Gilgit Wazarat. Its only large town is Gilgit. Pop. (latest) town, 4,671; (latest census) agency, 176,242." 50. `The Emergence of Pakistan", written by Chaudhry Muhammad Ali, former Prime Minister of Pakistan, described the position of Northern areas at pages 281, 282, 297 and 298 as: "Kashmir or to give its full name, the State of Jammu and Kashmir, is the northernmost part of the Indo‑Pakistan sub‑continent. Its area of 84,471 square miles was the biggest of any state in India. Its international boundaries with Tibet, China, Afghanistan and, but for a small intervening strip, with Russia, give it great strategic importance. Owing to its mountainous character the state was sparsely populated except in the beautiful valley of Kashmir. The total population of the State, according to the 1941 census, was about 4,000,000 of whom 77 per cent were Muslims. The Muslims were in a majority in every province of the State; there was a 93 per cent Muslims population in the Kashmir province; 61 per cent. in Jammu province; and almost 100 per cent in the northern region of Gilgit. In Ladkh, which adjoins Tibet, there was a small Buddhist population .(Pages 281 and 282). While these discussions between the Government of India and Pakistan were proceeding a local revolution occurred in Gilgit in the far north of Kashmir. The area is mountainous and its only communications with the rest of the State are two high passes that are snowbound in winter. The population is almost wholly Muslim. Although Gilgit formed part of the State of Jammu and Kashmir, it was administered by the British Government of India through a political agent. When Independence was declared, the area was retroceded by a Dogra Governor. When the unexpected news of the Maharaja's accession to India reached Gilgit. the people were outraged and decided to throw off the Maharaja's yoke. On October 31, the Hindu Governor was taken into custody by the Gilgit Scouts, and on November 2, the Pakistan flag was hoisted amidst popular acclaim. In response to a request to take over the administration, the Pakistan Government flew a representative to Gilgit on November

14. A little later, the rulers of Hunza and Nagir, which are comprised in the Gilgit Agency, requested accession to Pakistan. Since then, the whole area has been administered by the Pakistan Government and has remained outside the arena of conflict in Kashmir." (Pages 297 and 298). Alhaj Maulvi Hashmatullah Khan Lakhnavi in his Book "TAAREEKH‑E‑JAMMU", Chapter IV, at pages 805 to 815, described the position of Northern areas in the same manner as disclosed in "Emergence of Pakistan". In "Kashmir Saga" authored by Sardar Muhammad Ibrahim Khan, founder President of Azad Jammu and Kashmir, the status and geographical position of Gilgit and other Northern areas was described at pages 11, 50, 73, 76, 136, 209 and

225. Mr. Josef Korbel, member of the United Nations Commission for India and Pakistan, in his book "Danger in Kashmir", at pages 5, 6, 92 and 202, described: "The term "Kashmir", as is generally used, is actually not accurate. It applies to one part of the entire territory, the official name of which is the State of Jammu and Kashmir. The State consists of several regions. Its heart is the famous Vale of Kashmir. South of it is the 'Jammu Province, to the east is Ladakh, and north of it, Baltistan; farther north are the regions of Hunza and Nagir, and west of them, the Gilgit Agency, composed of several political districts. West of the Vale are the districts of Muzaffarabad, Riasi, Poonch and Mirpur. Kashmir's irregular borders many miles of which are as yet not internationally determined, touch a number of States. Beginning at its most north‑easterly point, Kashmir borders upon Sinkiang, the line running south and east for some 400 miles; then for about 450 miles it finds itself neighbour to Tibet. Between India to the south and Kashmir to the north, the border continues for some 350 miles, then joins, the boundary of Pakistan and turning north‑west for about 700 miles finds Afghanistan. Here the border swings east for about 160 miles, where it ends in a somewhat unclear situation‑‑‑on some maps it joins the Soviet Union for about 20 miles, while on the others (including some Russian maps) it ends at common point with the borders of both Sinkiang and Russia." (Pages 5 and 6). Only one region ‑‑‑ Gilgit ‑‑‑ was not affected by the violent struggle. Here the people seized the Maharaja's agent and through a bloodless revolution established their own local government, which immediately acceded to Pakistan. The Karachi Government, however, cautiously refrained from accepting the act of accession, possibly because it feared that such acceptance might imply their approval of a division of the State. (Page 92) In general, one would say that the western and north‑western areas of the State of Jammu and Kashmir form part of Pakistan, tied with her by the strong links of Islam, though this has not as yet found expression in any formal act. Legally they continue to be part of the state of Jammu and Kashmir, Their individual regions enjoy rights of wide autonomy, but they are far from being democratic. This can be partly explained as a consequence of the old feudal traditions of their primitive society and partly by the necessities of the war. But the internal organisation of the Azad territory is not the problem. Rather, it is that as the years go by, the people continue to see with anger over their enforced separation from their fellow countrymen on the other side of the cease‑fire line. It is in this respect that the policy of their leaders, if it is not extraordinarily wise and prudent, may have far reaching and disastrous consequences for the free world." (Page ,202). Karan Singh, in his book "Heir Apparent" has described at page 52, as: "A bare glance at any map of India at the time is sufficient to highlight the unique geographical location of this State, with boundaries that abutted both India and Pakistan, as also Tibet in the east and w separated from the Soviet Union in the north only by a narrow strip of Afghan territory. I have mentioned earlier the special British interest in the northern province of Gilgit, and several historians have built a whole thesis around the constant determination of the British to dominate this crucially strategic area. Indeed as far back as 1935 my father had been pressurized by the British into leasing the Gilgit Agency to them for sixty years. To add to the complexity of the situation, the State was composed in its various regions of people belonging to vastly different ethnic, cultural and religious groups. Thus the valley was inhabited predominantly by Sunni Muslims with a small community of Shias, Sikhs and the redoubtable Kashmiri Pandits; Jammu predominantly by Dogra Hindus with a significant Muslim component, the western strip from Muzaffarpur to Mirpur by Punjabi Muslims; Gilgit, Skardu and Kargil by Shia Muslims and Ladakh by Lamaistic Buddhists. This extraordinary patch‑work was, of course, the handiwork of my great ancestor Maharaja Gulab Singh who carved out the State with consummate skill in the middle of the nineteenth century." In "Crisis in Kashmir", Alastair Lamb has described the position of the State, at pages 17 and 18, as: "In fact, the State contains at least five distinct regions. First, there is Kashmir proper, the so‑called Vale along the upper reaches of the Jhelum River with its capital at Srinagar. Second, there is the State of Jammu, with its centre at Jammu city. Third, there is the district Poonch: and fourth, the very extensive tract of Ladakh and Baltistan Finally, in the north‑west is the Gilgit region comprising Gilgit Gilgit Wazarat. Gilgit Agency Yasin. Ishkoman Hunza and Nagar. The combination of these various tracts under a single administration took place during the course of the nineteenth century." The late Major Arthur Neve, in his book "The Legacy of Kashmir", published in 1945, described the position of the State as: "The Sikhs conquered Kashmir in 1810, and held it till the death of Ranjit Singh. Meanwhile the Raja of Jammu, Gulab Singh, was extending his conquests. Ladakh, Skardu, Gilgit and Astore were annexed. Partly with the view of detaching him from the Sikh power, then threatening our borders, he was secured by treaty in possession of the newly conquered territory, and the Valley of Kashmir was also bestowed on him. He died during the Mutiny when his hoops assisted in the storming of Delhi. His son, Ranbir Singh, ruled till 1885, and was followed by the late Maharaja Sir Partab Singh, who died in 1925 and was succeeded by H.H. Major‑General Sir Hari Singh." Sino‑Pakistan Treaty relating to international borders, was executed on March 2, 1963. The preamble of the treatly, parts of Article II and, Article VI, relevant to the proposition under consideration, are reproduced: "The Government of the People's Republic of China and the Government of Pakistan. Having agreed with a view to ensuring the prevailing peace and tranquillity on the border, to formally delimit and demarcate the boundary between China's Sinkiang and the contiguous areas, the defence of which is under the actual control of Pakistan in a spirit of fairness, reasonableness, mutual understanding and mutual accommodation and on the basis of Ten Principles as enunciated in the Bandung Conference: Being convinced that this would not only give full expression to the desire of the peoples of China and Pakistan for developing good neighbourly and friendly relations but also help safeguard Asian and world peace: Have resolved for this purpose to conclude the present Agreement. and appointed as their respective plenipotentiaries ...." "

1. In accordance with the principle expounded in Article I of the present Agreement, the two parties have fixed as follows the alignment of the entire boundary line between China's Sinkiang and the contiguous areas the defence of which is under the actual control of Pakistan." ARTICLE IV "The two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India the sovereign authority concerned will reopen negotiations with the Government of the People's Republic of China on the boundary as described in Article II of the present Agreement of Kashmir, so as to sign a boundary treaty to replace the present Agreement: Provided that in the event of that sovereign authority being Pakistan, the provisions of this Agreement and of the aforesaid Protocol shall be maintained in the formal boundary treaty to be signed between Pakistan and the People's Republic of China." Sir Muhammad Zafrullah Khan, Foreign Minister of Pakistan, in his speech made in the Security Council on January 16, 1948, described the position of the State, including Gilgit, as: "We now turn to the State of Kashmir itself. This State was purchased by the great‑grandfather of the present Ruler of Kashmir from the British East India Company in 1846 for 7,500,000 rupees. Roughly this is less than $ 2,500,

000. The population of Kashmir is distributed communally as follows: In Kashmir proper, apart from Jammu, 93. 5 per cent are Muslims. Sixty two per cent of the population of Jammu, are Muslims. In the combined Jammu and Kashmir State, 78 per cent are Muslims. The total population is approximately 4,000,

000. Gilgit, which is the high mountain region in the North‑west, a part of which borders on the USSR, is entirely Muslim. The total area of the State, which is largely composed of high mountains and barren hills, is 82,000 square miles. The region is famous for its beauty. The people of this State are similarly famous. Their high artistic, talents are well know. What is not fully known is the depth of misery to which they have been reduced by a century of unmitigated tyranny and oppression under Dogra rule until it is difficult to say which is the greater tragedy to a Kashmiri; His life or his death. Death often provides release from the unbroken chain of suffering, misery and privation which begins in the cradle and ends only in the grave..

51. There is agreement among various celebrated writers that close to the last decade of the nineteeth century, the Czar of Russia manipulated to extend his control in the neighbouring areas of Afghanistan and Sinkiang. The British authorities ruling India, got alert. Thus, in consideration of strengthening the defence of adjoining areas lying on the north‑west boundaries of the State secured permission from the ruler of the State to appoint their political agent in the northern areas. With the approval of the Maharaja, political agent was appointed, whose seat of administration was in Gilgit. Subsequently, in view of further political developments in the surroundings of the northen areas, the British Government of India persuaded the Marharaja to grant lease of part of the area of Gilgit. Thus, the British Government secured lease of the area of Gilgit Wazarat for a period of sixty years. The lease was signed on March 26, 1935. As a result of the treaty of lease, changes were made in the nomenclature of the administrative units as: (1) Ladakh District (comprising tehsils of Leh, Kargil and Skardu; (2) Astore District (formerly part of Gilgit District); (3) Gilgit (Leased Area) District; (4) Gilgit Agency. The Census Report of 1941 explicitly described: "The Gilgit Agency has a total area of 14,680 square miles and consists of the illaqas of Hunza, Nagar, Punial, Ishkoman, Yasin, Kuh, Ghizar and Chilas. The whole area is administered on behalf of His Highness' Government by the Government of India's political agent at Gilgit. These illaqas are tributary to His Highness and form part of the territories of the Jammu and Kashmir State."

52. In order to properly appreciate and for convenience of settlement of the controversy, it is deemed relevant to reproduce the lease treaty: "The treaty of Jammu signed between the Government of British India and Maharaja of Jammu and Kashmir, at Jammu, on March 26, 1935 provides as follows: Clause I. That the Viceroy of India is authorised after ratification of the treaty, to take over the Military and Civil administration of that part of the district (Wazarat) Gilgit of the State of Jammu and Kashmir, which is situated on the right bank of river Indus, subject to the condition that the area mentioned above shall remain included within the territorial boundaries of the State of Jammu and Kashmir under the Maharaja of Kashmir. Clause II. In proof of the fact that the leased area continues to be a part of His Highness territories of Jammu and Kashmir, On the occasion of His Highness Birthday, Baisakhi, Dosehra, Basant and on other occasions to be decided between the parties, administration of the leased area shall pay formal tributes to the sovereignty of His Highness the Maharaja of Kashmir. The flag of His Highness shall always fly at the official headquarters of the Agency. Clause III. The British armed forces shall not pass in ordinary circumstances through the part of Wazarat Gilgit situated on left bank of river‑ Indus: Clause IV. All rights regarding minerals in the leased area stand reserved in favour of His Highness. Clause V. This lease shall be in operations for a period of sixty years after which it shall terminate." The tern's of the lease explicitly reflect that sovereignty in respect of the leased area was retained by the Maharaja. The British Indian Government accepted its position as a lessee.

53. An incidental event which corroborates the aforesaid position pertains to restoration of administrative control of the Northern areas to the State Government, on enforcement of the Independence Act of 1947. Section 7(1)(b) of the Independence Act, being relevant to the point under consideration, is reproduced : "As from the appointed day, the suzerainty of His Majesty over the Indian States, shall lapse and with it all treaties and agreements in force at the date of the passing of this Act between His Majesty and rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States all obligations of His Majesty existing at that date towards Indian States or the rulers thereof and all powers, rights, authority or. jurisdiction exercised by His Majesty at that date, in or, in relation to Indian States by treaty, grant, usage, or otherwise." It is evident from the aforesaid provisions that on lapse of suzerainty of the British Crown over the Indian States, all treaties and agreements in force between the British Crown and the rulers of States equally lapsed. By virtue of the aforesaid legal position, it was accepted that the treaty of lease made between the State Government and the Government of British India lapsed. Thus, the administrative control of the areas was restored to the State Government. The State Government, in consequence of lapse of the lease treaty, appointed its own Governor (Brigadier Ghansara Singh) on July 17, 1947 (Sawan 16, 2004 Bik) vide Order No. B. 480/47‑P.B. The order of appointment is reproduced: "CHIEF SECRETARIAT‑‑‑POLITICAL ORDER NO. B.480/47‑P.B. 17th July, 1947. His Highness the Maharaja Bahadur has been pleased to command that:‑‑ (1) The administration of the entire Gilgit territory i.e. Gilgit Wazarat north of the Indus and all Political Districts be taken over on 1st August. (2) The above together with Bunji will form the Gilgit Frontier Province. (3) A post of Governor in the grade of 700‑40‑900 with the usual Frontier Allowance and a sumptuary allowance of Rs. 200 p.m. is sanctioned. (4) Brigadier Ghansara Singh is appointed Governor. He will draw his personal pay Rs. 1,000 together with Frontier and sumptuary allowances. (5) For Revenue and general administration work 3 Officers‑‑‑one Revenue Assistant and two Naib‑Tehsilders‑‑‑are sanctioned. These officers will draw Frontier allowances according to rules. Brigadier Ghansara Singh will personally select the above officers. (6) Services of two British Officers‑‑‑one as Assistant Governor Chilas and one as Commandant Gilgit Scouts be taken over for a period of one year each. The emoluments of these officers will be sanctioned later when we know the class of officers we are getting. (7) The Company stationed at Bunji may be reinforced by one more Company. (8) The Budget for the Gilgit Frontier Province will be sanctioned when full details are known and have been scrutinized. By command. (Sd.) R.C. KAK Prime Minister." Brigadier Ghansara Singh reached Gilgit on July 30, 1947 and took over the administrative control of the Northern Areas as Governor, by relieving Lt: Col. Becon, a British Officer previously acting as Political Agent. Brigadier Ghansara Singh has given own account of his posting as Governor of Gilgit, in "GILGIT BEFORE 1947". Relevant paras are 6, 7, & and 11, which are reproduced: "(6) I reached Gilgit on 30th July, 1947 to take over as Governor of Gilgit and its Agency. (7) At that time Lt.‑Colonel Becon, a British officer was the Political Agent. He was assisted by three or four British officers in the Administration. (8) The general impression was that the British officers did not like the change over, but the Gilgit public, however, was highly pleased with the transfer of power and they welcomed the change, but were surprised to find that I had come all alone. The same evening Major Brown, the Commandant, and JCOs of Gilgit Scouts came to pay respects to Major‑General Scott and to me. During the course of our conversation Sub‑Major Babur Khan of Scouts and all the JCOs clearly stated that they wanted to serve Pakistan. They will serve the State if their demands were adequately met. Major‑General Scott noted down all their demands which were about a dozen in number and promised that he will obtain sanction and communicate the same to the Governor and they need not worry and must serve the State. After dispersal, I told Major‑General Scott, that 3 or 4 demands were most unreasonable and these will not be acceded by the Government but he promised for obtaining special sanction.

11. Thus the whole charge of the Gilgit and Gilgit Agency was taken over .....

55. The geographical and administrative status of the Northern Areas also finds it mention in the recent publication, titled "Transfer of Power 1942‑47". In Volume 12, events relating to consequences of set up of new dominions, were described at page

237. It refers to the provisions of section 7 (1) (b) of the Independence Act, under which the suzerainty of the British Crown lapsed and the life of agreements and treaties, in force on the date, between His Majesty's Government and the Princely States, came to an end.

56. Another relevant authority on the point is "A Collection of Treaties, Engagements and Sanads Relating to India and Neighbouring Countries", complied by C.U. Aitchison. In Volume XI, at pages 246 to 250, the details of annexation of Ladakh, Baltistan; Gilgit, Yasin, Darel, Tangir, Chilas etc. are described lucidly. We do not propose to reproduce the same lo avoid repetition, as we have already quoted from the leading authorities. We may add here that the text of Sanads granted by the Maharaja to the Rajas of Nagar, Hunza, people of Gor and Thor are also appended with the aforesaid volume.

57. Next, we pass on to various laws of the State, which governed the aforesaid areas under the rule of the Majaraja. Among the laws on the statute book of the State, we propose to refer to the Gilgit Scouts Laws, Act No. XVI of 1917/2004‑Bik, Jammu and Kashmir Land Revenue Act, 1996‑Bik, the Tenancy Act, 1918, the Game Laws Notification, 1970‑Bik, Prevention of Sedition Act, 1971‑Bik and the Jammu and Kashmir Constitution Act, 1996 Bik. The Gilgit Scouts Law, Act No. XVI of 1917/2004‑Bik is important and relevant to the proposition, as we find reference to the liberation of Gilgit by Gilgit Scouts assisted by the State army and local people of the areas. We propose to reproduce the preamble, section 1, subsection (2) and section 3 of the Act as, in our estimation, these provisions sufficiently reflect the spirit of law relating to legal and political status of the areas. These are reproduced: "WHEREAS it is expedient to provide for the regulation of Gilgit Scouts in the Gilgit Frontier Province: (1) (2) It extends to the Officers, Indian Officers and other members of the Gilgit Scouts whether serving within or without the limits of the Territories of His Highness the Maharaja Bahadur. (3) There shall continue to be a force (maintained by His Highness the Maharaja Bahadur and called the Gilgit Scouts) for the better protection and administration of the external frontier of the territories of His Highness the Maharaja Bahadur within the limits of or adjoining, the Gilgit Frontier Province or any part thereof." Section 6 of the Land Revenue Act pertains to Revenue officers' classes and powers in the State. It is reproduced: "6. (a) There shall be the following classes of Revenue Officers:‑ Commissioner, Collector, Assistant Collector of the Ist Class, and Assistant Collector of the 2nd class. (b) ... ... ... (c) Until a notification is issued to the contrary, the following officers shall exercise the powers noted against their names: Revenue Commissioner = Commissioner Governors of Jammu and Kashmir. = Collector Wazirs Wazarat Ladakh and Gilgit Collector Wazir‑i‑Wazarat = Assistant Collector of the Ist Class. Revenue Assistant. = Assistant Collector of the 2nd Class. Section 6 of the Tenancy Act is relevant to the proposition, as it relates to the Districts of Ladakh, and Gilgit. By virtue of the provisions, occupancy tenancy, rights were granted to various classes of tenants in different areas of the State. Tenants eligible to occupancy tenancy in the Districts of Ladakh and Gilgit were described as:‑ CLASS I.‑Tenants whose possession of their tenancies began in or before the Samvat year 1942. CLASS

2. Tenants whose possession began after the Samvat year 1942, but not later than the Samvat year 1951. CLASS

3. Tenants whose possession began after the Samvat year 1951, but not later than the Samvat year 1965.. CLASS

4. Tenants whose possession began after the Samvat year 1965."

58. Under the provisions of "Prevention of Sedition Act, 1971‑Bik.", the term `Governor' was defined under section 2(3). It is reproduced: " `Governor' means the Governors of Jammu and Kashmir and the Wazir of Leh and Gilgit within their respective jurisdiction."

59. The Game Laws Notification, 1970‑Bik., described the areas of jurisdiction to which the notification applied. It is evident from the provisions of the notification that the conditions of game laws extended upto Ladakh, Baltistan and Gilgit. Different other laws of the State exclusively applicable to Northern Areas are: (i) The River Rules, 1965‑Bik.; (u) The Fisheries Act, 1960‑Bik.; (iii) Rules Placing Restriction on Removal of Females from Baltistan, 1958 Bikrami; (iv) The Octroi Act, 1958‑Bikrami; (v) The Arms and Ammunition Rules, 1958‑Bik. (vi) The Court Fee Act. All these laws were enforced in the State including Gilgit and Ladakh (including Frontier Illaqas).

60. It is noticed elsewhere that the people of the State resist6d the repressive activities of the Dogra rule and earnestly endeavoured for their civil rights and liberties. The movement gained momentum in 1931, when a Law Reforms Commission was appointed. In consequence of the recommendations of the Commission (Glancy Commission), the Maharaja agreed to establish a Legislative Assembly, called the Praja Sabha. The Jammu and Kashmir Constitution Act was enforced in 1996‑Bikrami. The Assembly was partly representative as some of the members were nominated by the ruler of the State. Among them, five members were nominated from Ladakh and Gilgit; two were Buddhist from Ladakh Wazarat, one Muslim from Skardu, one Muslim from Kargil and one Muslim from Gilgit Wazarat. The last elections in the State (before independence of 1947) were held in January, 1947. The nominated members from Ladakh and Gilgit, were: (1) Raja Jigmat Dadool of Stoke. Ladakh Wazarat (Buddhist). (2) Nono Chewing Rinchen. (3) Raja Fateh Ali Khan of Skardu. Skardu (Muslim) Tehsil (4) Mr. Ahmad Ali Khan Skardu (Muslim) Tehsil (5) Raja Raza Khan. Gilgit (Muslim) Wazarat (6) M. Mohad Jawad Ansari. Northern Kashmir Wazarat(Muslim)

61. We are also in possession of record of the Assembly relating to its budgets, wereby development funds were allocated for various development schemes of Northern Areas. In the budget of 1940‑41(1997‑98 Bik), column of `expenditure' reflected the amount for grant of allowance to clerks and other subordinate administrative staff posted in Gilgit Agency. The relevant provision appears at page 118 of the Budget Book. Likewise, at page 220, amount was reserved for construction and repairs of roads in Gilgit Division. In the budget of 1945‑46 (2002 Bik), in the column of local funds (education cess), included, among others Gilgit. A special provision of allowance was made for Chowkidars posted in Gilgit, in the column of `special expenditure'. Likewise, funds were allocated for teachers posted in Gilgit and Skardu. Funds were also provided for the Governor of Yasin, Mir of Nagar, Governor of Punial, Governor of Kuh and Ghizar, etc.

62. On liberation of the territories of the State and formation of the provisional Government with its headquarters at Muzaffarabad, the pensioners of the Northern Areas received their pensions from the treasury of Azad Jammu and Kashmir, with effect from the emergence of the provisional revolutionary Government till January, 1949. The record is available with the Accountant‑General of Azad Jammu and Kashmir. The number of the pensioners of the Northern Areas who were receiving pensions from the treasury of Azad Government, has been shown as

129. All the aforesaid factors lead to an undisputable conclusion that the Northern Areas have been and are part of Jammu and Kashmir State.

63. As a counter‑check, we further proceed to examine the scope of territories of Pakistan so as to analyse as to whether the Northern areas, in fact, fall within the purview of Pakistan territories or not. We take the benefit of the provisions of the Independence Act of 1947, which defined the limits of Pakistan territories, including East Pakistan, now Bangla Besh. Section 2 of the Act provided that subject to the provisions of subsections (3) and (4), the territories of India shall be the territories under the sovereignty of His Majesty which, immediately before the appointed day, were included in British India, except the territories which, under subsection (2), are to be the territories of Pakistan. Under section 2(1) of the Act, the dominion of India comprised such territories which formed part of the British India under the sovereignty of British Crown except the territories which comprised Pakistan. Subsection (2) of section 2 laid down that subject to subsections (3) and (4), the territories of Pakistan shall be:‑‑ (a) the territories which, on the appointed day, were included in the Province of East Bengal and West Punjab as constituted under the two following subsections; (b) the territories which, on the day of passing of the Act, were included in the Province of Sindh and the Chief Commissioner's Province of British Baluchistan; (c) the North‑West Frontier Province provided on or before the appointed day, the majority of the citizen of that Province, voted in favour of Pakistan and it was so declared by the Governor‑General. Subsection (4) of section 2 further provided that without prejudice to the generality of the provisions of subsection (3), nothing in the section shall be construed as preventing the accession of Indian States to either of the new dominions.

64. The aforesaid scheme of division of the sub‑continent, namely, British India as it was under the sovereignty of British Crown, leads to the conclusion that the territories which comprised Pakistan were East Bengal., West Punjab, Province of Sindh, Chief Commissioner's Province of British Baluchistan, North‑West Frontier Province and the territories of such other States which acceded to Pakistan on, before or after August 15,1947.

65. The territorial areas of Pakistan were further elaborated in the Constitutions of Islamic Republic of Pakistan of 1956, 1962 and 1973. In the present Constitution, under section (2), the territories of Pakistan were listed as:‑‑ (a) The Provinces of Balochistan, North‑West Frontier, the Punjab and Sindh; (b) The Islamabad capital territory; (c) The Federally Administered Tribal Areas (FATA); and (d) such States and territories as are or may be included in Pakistan whether by accession or otherwise. It is quite evident from the aforesaid description of the territories of Pakistan that the Northern areas or, for that matter, any other part of Jammu and Kashmir State, are not claimed as part of Pakistan.

66. The rules of procedure applicable to writ petitions are the same which apply to civil actions: Order 8 of the Code of Civil Procedure pertains to written statements and averments made therein. Rule 3 envisages that it shall not be sufficient for defendant to deny generally but to deal specifically with each allegation of fact of which he does not admit the truth. Rule 4 makes it imperative for the defendant not to deny evasively but to answer the point of substance expressly. Likewise, Rule 5 postulates that an allegation of fact in the plaint, if not denied specifically or by necessary implication, it shall be deemed as admitted.

67. Respondent No.1, in its written statement, have not taken a definite stand in respect of geographical and political status of the Northern Areas. It has answered the allegation made in the petition evasively and emphasised that it was political proposition, as such it should not be attempted for its settlement. The allegation of fact that the Northern areas are part of Jammu and Kashmir State has not been denied specifically or by necessary implication. Failure of the respondent to controvert the question of fact, appears to be an attempt to misdirect from the real question in controversy. We, therefore, conclude that respondent No.1 deliberately avoided to deny the allegation of the petitioners that the Northern areas are part of Jammu and Kashmir State. Thus, it shall amount to an admission. This view finds support from Muhammad Ashrafs case, PLD 1983 SC (AJ&K)

181. That was a case of pre -emption. Plaintiffs alleged their relationship with the vendor. Defendant- vendee, instead of denying or admitting the claim of plaintiff expressly, disclosed his ignorance about the relationship of the plaintiff with the vendor. The reply of defendant‑vendee, for its not being a denial specific or by implication, was construed as admission. In Muhammad Lal's case, PLD 1979 SC (AJ&K) 15, the vendee‑defendant failed to deny the claim of the pre -emptor specifically. The learned Judges of the Supreme Court observed that the claim of the pre‑emptor was impliedly admitted. In Ramrao Laxmikant Shirkhedkar's case, AIR 1963 Bombay 121, it was observed:‑‑ "Petitioner asserting that Government had issued certain instructions in the matter of strike by Government servants. No averment in the return filed on behalf of respondents either denying or affirming of such instructions. On normal rules of pleading it must be held that the issuing of such instructions, as alleged try the petitioner, had not been denied and, therefore, must be taken to have been accepted." In Badat and Co. Bombay's case, AIR 1964 Supreme Court 538, the rules of procedure envisaged in Rules 3, 4 and 5 of Order 8 of the Code of Civil Procedure were construed as:‑‑ "Rules 3, 4 and 5 of Order 8 of C.P.C. form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non‑compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. But under the proviso to Rule 5 the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Court presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the original side of the Bombay High Court the pleadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to, rely upon them for non‑suiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality and the traditions and conventions of a Court wherein such pleadings are filed." In Nimar Cotton Press's case, AIR 1956 Nagpur 27, it was observed:‑‑ "An express denial of an allegation in a statement of claim is called a traverse. When the matter is within the knowledge of the defendant, he generally denies any statement which he disputes. When it is not within his own knowledge, he usually `does not admit' it. The proceedings under Article 226 are civil proceedings and, subject to the rules made by the High Court to regulate proceedings under that Article, are regulated by the Code of Civil Procedure. Hence averments in petition under Article 226 which are not traversed by the respondent must be held to be admitted." The tenor of the aforesaid authorities leads to the conclusion that it is enjoined upon defendant to traverse en allegation made in the petition, expressly or by necessary implication. Otherwise, it has to be deemed as an admission of the allegation. In Badat and Co. Bombay's case (AIR 1964 Supreme Court 538), the learned Judges of the Supreme Court (India) extensively dealt with the proposition and concluded that written statement must deal specifically with each allegation of fact in the plaint and when defendant denies such a fact, he must not do so evasively but answer the point of substance; when the denial of the fact is not specific but evasive, such fact shall be taken as admitted. The scope of the proviso to Rule 5 was also construed. It was observed that the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the result of accidental slip or omission. The proviso cannot be availed by a party who designedly made vague denials. The discretion conferred under the proviso, it was held, was to be exercised having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in the locality and the traditions and conventions of a Court where such pleadings were filed. In view of the aforesaid principle, in present case, respondent No.1 cannot seek the concession of proviso, to its pleadings (written statement) so as to hold that the geographical position and political status of the Northern areas being part of Jammu and Kashmir State, as alleged by the petitioners, was traversed specifically. Therefore, our conclusions are that the respondent impliedly admitted the claim of the petitioners and agreed that the Northern areas are part of Jammu and Kashmir State.

68. Respondent No.1 placed a copy of the writ petition addressed by Qurban Ali and others against the Federation of Pakistan, in the Lahore High Court, Rawalpindi Bench. The copy of the petition was produced alongwith the written statement. Our attention was invited to the recitals of the petition and it was canvassed that the people of the Northern areas were interested to become part of Pakistan. In that context, it was prayed in the petition that the Northern areas may be integrated with a province of Pakistan, demoratic institutions may be established and basic rights and civil liberties enshrined in the Constitution of Pakistan may be extended to the people of the Northern areas. We have examined the grounds raised in the petition and have also considered its implication on the present petition. First of all, we have to examine the legal bar to the proceedings in the present petition in presence of the writ petition described above, before the Lahore High Court, Rawalpindi Bench. The parties in both the petitions are not exactly the same but the contention is partly identical, as in both the petitions the petitioners have prayed for establishment of democratic institutions, including independent Judiciary, grant of due representation by providing the facilities of civil liberties and basic rights admissible to their contemporaries to other parts of the State. The obvious distinction between the two is that in the petition addressed by Qurban Ali and others, prayer is made for integration of the Northern areas with a province of Pakistan and extension of constitutional jurisdiction. In present case. conversely the petitioners have prayed for integration of the Northern areas with Azad Jammu and Kashmir and extension of the provisions of the Azad Jammu and Kashmir Interim Constitution Act by bringing their status at par with their compatriots in Azad Jammu and Kashmir.

69. We have examined the territorial limits of Pakistan elsewhere. High Court of Pakistan have been conferred writ jurisdiction under Article 199 of the Constitution of Pakistan, 1973. Under Article 199(1)(a)(i), (ii), (b)(i), (ii) and (c), it has been enjoined upon a High Court to make an order on the application of an aggrieved party in either of the cases described therein, in connection with the affairs of Federation or Province or a local authority or person in respect of any act done or omitted to be done, or proceedings taken within the territorial jurisdiction of the Court. Thus, the jurisdiction of the High Court was restricted within the territorial limits of the respective Province. The limitations were:‑‑ (i) the writ of the High Court cannot run beyond the territories subject to its jurisdiction; and (ii) the person or authority to whom the writ is issued, must be within the territory subject to the jurisdiction of the High Court. In the writ petition addressed by Qurban Ali and others, the petitioners were residents of Northern areas. The place to which the jurisdiction of the Constitution was sought to be extended was the Northern areas. In other words, neither the petitioners nor the area in respect of which the relief was sought, were part of the Province of‑Punjab. In such situation, ordinarily, the petition may not be entertainable. We do not propose to go into deep appreciation of the proposition as, prima facie, the scope of jurisdiction of Lahore High Court, Rawalpindi Bench, can be tested in the light of the provisions of Article

199. The dictum of the Supreme Court of Pakistan is readily available as a guideline 'to sort out the true legal position. Reference is made to Jamil Ahmad's case, PLD 1969 Supreme Court 344, Haji Umar Gul's case, PLD 1973 Supreme Court 544 and Abdul Rahim's case, PLD 1974 Supreme Court 109.

70. The other aspect of the objection may find place m the principle of law stipulated under section 10 of the Code of Civil Procedure. Under section 10, a bar to a subsequent suit or proceedings was enforced when the matter in issue was directly and substantially in issue in previously institute, proceedings, between the same parties and the proceedings were pending in the same or any other Court of competent jurisdiction and having like jurisdiction. We have already partly analysed the nature of the parties and the subject‑matter in issue. In absence of denial by the petitioners, it has to be accepted that the petition addressed by Qurban Ali and others is sub judice before the Lahore High Court, awaiting its decision. In such situation, it has to be settled whether the present petition is maintainable or not. Our answer to the objection is that the petition under consideration may not be thrown away simply on account of institution of another petition before another High Court. Our reasons are: (i) that the grounds raised in the petition of Qurban Ali and others reflected, in substance, that the Northern areas are not part of Pakistan and the petitioners were seeking intervention of the Lahore High Court to issue direction for integration of the areas with a Province of Pakistan; (ii) that the provisions of the Pakistan Constitution were not extended to the Northern areas, as such extension of the provisions of the Constitution was one of the main reliefs sought by the petitioners; and (iii) that the Northern areas were not integral part of any Province of Pakistan. In presence of the aforesaid admission and factual aspect, the bar to the proceedings in the present petition, as envisaged under section 10 of the Code, was not enforceable. In support of our conclusions, we propose to refer to Ladli Parshad's case, AIR. 1954 Punjab

94. In that case, an application for winding up a private limited company was moved in the High Court of Lahore on May 1, 1946. During the pendency of the application, another application was filed for winding up the company in the East Punjab High Court in December, 1951. An objection was raised against the second application. It was held that under Article 13 of the High Courts (Punjab) Order, the Lahore Court was competent to proceed with the petition. But there was no bar to the institution of second application, on similar grounds, before the High Court of East Punjab. In view of the learned Judge who spoke for the Court, the rule regulating such matters contained under section 10 of the Code did not apply to the case, as it merely related to stay of one of the suits or proceedings. In present case, the case of the petitioners is on much better footing as the rules of procedure of this Court or, for that matter, any other law of the State, does not restrict the jurisdiction of this Court to proceed with a suit or proceedings which was sub judice before a High Court of Pakistan or some other country Therefore, we do not consider that the institution of petition by Qurban Ali and others, residents of the Northern areas, was an impediment in the disposal of the present petition.

71. Another allied but very vital aspect of the position relating to the writ petition addressed by Qurban Ali and others may not be left unnoticed, as it affects the touchstone of the Kashmir problem, within the State of Pakistan and outside, particularly the United Nations. As the objection is likely to affect the cornerstone of decades' old Pakistan policy towards Kashmir problem, we deem it our duty to analyse the proposition in its true perspective. It is well known that India based its claim to the State of Jammu and Kashmir on the basis of the instrument of accession purported to be executed by the late ruler of the State, on October 26, 1947. The accession of the State to India was not accepted by Pakistan as, in its opinion, it was purely deceptive and fraudulent. In view of the dubious character of the so‑called accession, the Indian Prime Minister invariably endeavoured to convince Pakistan that the ultimate future of the State shall be settled by the people of the State. As the dispute could not be settled bilaterally, it was taken to the Security Council by India. In the Security Council, India reiterated its claim to accession, but at the same time, committed that the people of the State were the sole arbiter of their fate and future and they alone shall be able to decide their destiny. The Security Council, vide its resolutions, guaranteed that the Kashmir problem shall be settled by a plebiscite under the United Nations' auspices. The United Nations Commission for India and Pakistan reiterated the unanimously accepted resolutions of the Security Council in their own detailed resolutions unanimously passed on August 13,1948 and January 5, 1949. These resolutions were also endorsed by both India and Pakistan.

72. In second thought, India manoeuvred to frustrate the resolutions of the Security Council and the United Nations Commission for India and Pakistan by holding elections to the Constituent Assembly of the Indian occupied part to the State, and manipulated its endorsement of the alleged accession made by the last ruler of the State. Pakistan promptly invited attention of the Security Council to the conspiracy of India in collaboration with the leaders of the Indian‑held part of the State, and exposed the scheme of India to integrate the State with the Indian Union, to frustrate the resolutions of the United Nations. The Security Council summoned its meeting and examined the complaint of Pakistan. It unanimously resolved on March 30,1951:‑‑ "Having received and noted the report of Sir Owen Dixen, the United Nations Representative for India and Pakistan, on his mission initiated by the Security Council resolution of March 14, 1950. Observing that the Governments of India and Pakistan have accepted the provisions of the United Nations Commission for India and Pakistan resolutions of August 13, 1948. and January 5, 1949, and have re‑affirmed their desire that the future of the State of Jammu and Kashmir shall be decided through the democratic method of a free and impartial plebiscite conducted under auspices of the United Nations. Observing that on October 27, 1950, Council of "All Jammu and Kashmir National Conference" adopted a resolution recommending the convening of a Constituent Assembly for the purpose of determining the future shape and affiliations of the State of Jammu and Kashmir. Observing further from statements of responsible authorities that action is proposed to convene such a Constituent Assembly and that the area from which such a Constituent Assembly will be elected is only a part of the whole territory of Jammu and Kashmir. Reminding the Governments and authorities concerned of the principle embodied in the Security Council resolutions of April 21, 1948, June 3, 1948 and March 14, 1950, and the United Nations Commission for India and Pakistan resolutions of August 13, 1948, and January 5, 1949, that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed in the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations. Affirming that the convening of a Constituent Assembly recommended by the General Council of the "All Jammu and Kashmir National Conference" and any action that assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance pith the above principle.

73. Second attempt was made by India on identical lines in 1956. It once again manoeuvred to get the purported accession by the ruler, stamped by the Assembly of the State, to perpetuate its aggression and usurpation of the State. Pakistan, once again, invited attention of the Security Council to the conspiracy and emphasised that India may be stopped from perpetuating its hold on the State by defeating the United Nations' resolutions. The Security Council once again rose to the occasion and reiterated its earlier stand, in the shape of its resolution passed on January 24, 1957. The resolution was passed in the following terms: "THE SECURITY COUNCIL Having heard statements from representatives of the Governments of India and Pakistan concerning the dispute over the State of Jammu and Kashmir; Reminding the Governments and Authorities concerned of the principle embodied in its resolutions of 21st of April 1948, 3rd June 1948, 14th March, 1950 and 30th March, 1951, and the United Nations Commission for India and Pakistan resolutions of 13th August 1948 and 5th January 1949, that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations; Reaffirms the affirmation in its resolution of 30th March 1951 and declares that the convening of a Constituent Assembly as recommended by the General Council of the "All Jammu and Kashmir National Conference" and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof or action by the parties concerned in support of any such action by the Assembly would not constitute a disposition of the State in accordance with the above principle; Decides to continue its consideration of the dispute."

74. It is evident from the language of both the resolutions that the Security Council steadfastly adhered to its resolutions passed on April 21, 1948, June 3, 1948, March 14, 1950 and March 30, 1950 and to the United Nations Commission for India and Pakistan's resolutions of August 13, 1948 and January 5,1949. It affirmed that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people, expressed in the democratic method by free and impartial plebiscite conducted under the auspices of the United Nations. As a caution, it denounced the proposed attempt of the Assembly and National Conference of taking any step to determine the future shape and affiliation of the entire State or any part thereof in derogation to its resolutions. It warned that any attempt to determine the future shape or affiliation of the entire State or any part thereof would not be accepted and it would not constitute a disposition of the State in accordance with the principle enunciated in the resolutions.

75. Pakistan, at all levels adhered to the aforesaid pronouncements of the Security Council. Therefore, no idea or scheme which is derogatory to the well‑considered and consistent policy of Pakistan may be entertained at any stage. By allowing integration of Northern areas to any Province of Pakistan would tantamount to negation of the Pakistan's stance at home and in the Security Council. At first, such a derogatory step may appear beneficial to some minds, but in the larger interests of Pakistan and particularly the future of Jammu and Kashmir State, no sane person would allow disintegration of the State in any manner. This is so, as indirectly it fell in line with the Indian policy to deny the right of self‑determination to the people of Jammu and Kashmir by integrating the territory under its control with the Indian Union, by striking finally the hammer of servitude and subjugation on the people of the State.

76. It will not be useless at this juncture to lift the curtain from the Indian conspiracies to mislead the world opinion, to retain its hold on the State, right from the time the formula of partition of the sub‑continent was announced. It may not be forgotten that the Indian leaders, despite making their individual and collective commitments, at all levels, to hold plebiscite in the State, concocted and fabricated grounds to delay the proposed plebiscite to keep the State in their fold. We propose to expose these conspiracies by reference to an independent source. Professor Alastair Lamb, in his celebrated treatise "KASHMIR‑‑‑A DISPUTED LEGACY", edition 1991, recorded full account of political developments in the State. By dint of his deep study and research in various archives, including India, exposed the political developments which took place in late 1946 and 1947. He invited attention of the scholars interested in the Kashmir problem, to see how the Prime Ministers were changed, one after another, within short span of time and Justice Mehr Chand Mahajan (he was member of the Boundary Commission, nominated by India) was installed as Prime Minister of Kashmir on September 18, 1948. This was a crucial time in the sub‑continent and particularly in the State, as the liberation forces within .the State had already swung into action. At the relevant time, he was a sitting Judge of East Punjab High Court. He obtained leave to assume the assignment on persuasion of Patel and sanction of Jawahar Lal Nehru. Alastair Lamb described all the relevant events in chronological order, as they enveloped the political scenario at the time. He highlighted the hypocracy of Indian leadership in his own words, and we extensively quote the relevant excerpts: "Immediately after the departure from the State of Jammu and Kashmir of Major‑General Scott on 22nd September (and now safer from British observation) some active steps were taken to strengthen links with India by providing Srinagar airfield with wireless equipment to make it more suitable for bad weather operation. Arrangements were made for the supply of extra arms and ammunition to the Jammu and Kashmir State Armed Forces through an Indian Military adviser. Lt.‑Col. Kashmir Singh Katoch (a regular officer in the Indian Army, who was a son of Janak Singh, then still Prime Minister of Jammu and Kashmir and related to Maharaja Hari Singh), who was established in Srinagar at the beginning of October (and who remained there throughout the accession crisis); and by the middle of the month war material was being flown into the State in significant quantities. Staff preparations were made for Indian troop concentrations at Madhopur in the Pathankot tehsil near the Jammu border as potential reinforcement for the State Army. The improvement of the road from Jammu to Indian frontier in the direction, of Pathankot, begun around the time of the Transfer of Power, was accelerated and telegraphic lines of communication were expanded. Batra, the Deputy Prime Minister of the State, was now in regular contact not only with Sardar Vallabhbhai Patel but also with Baldev Singh, the Defence Minister in the Government of India. No doubt there were other links between Srinagar and New Delhi: for example D.P. Dhar, a young Kashmiri Brahmin (Pandit) who was beginning his political career, certainly possessed close contacts at the higher level of Indian political life. All this activity, recorded in considerable detail in the first volume of Sardar Vallabhbhai Patel's correspondence which was published in 1971, makes it clear that both Sardar Vallabhbhai Patel and Baldev Singh were heavily engaged in the planning of some kind of Indian military intervention in the State of Jammu and Kashmir, if only on a contingency 'oasis, by at least 13th September 1947; and that by the third week of October a substantial foundation for such an operation had been laid ." (Page 130) "The Sikh Maharaja of Patiala, for example, in the first two weeks of October 1947 provided his colleague in the State of Jammu and Kashmir with a battalion of infantry and a battery of mountain artillery from his own State Armed Forces; perhaps this had been discussed when the Maharaja of Patiala visited Srinagar in July 1947. When Indian troops finally intervened in Jammu and Kashmir on 27th October 1947 they found, apparently to their surprise, Patiala gunners already guarding the vital Srinagar airfield, where they had been encamped since at least 17th October. The Patiala infanry were stationed in Jammu as reinforcements for the garrison of the Maharaja's winter capital. How these troops were transported is not known: it is possible that they were moved as part of the supply convoys despatched to Jammu and Srinagar by the Government of India in reply to the alleged Pakistani "blockade". Shortly after the formal intervention of the Indian Army the Maharaja of Patiala, Yadarindra Singh, came to Jammu to command his contingent in person. In that by October 1947 the Patiala State forces had by the terms of the State's acession to India (as part of the Patiala and East Punjab States Union) on 5th May 1947 come under the control of the Government of Indian Union at the moment of the Transfer of Power, this deployment of Patiala State troops raises a number of questions which have yet to be answered, not least how they actually managed to reach the State of Jammu and Kashmir without the fact being reported to the senior British commanders still in the service of the Indian Army (who would surely have informed Mountbatten had they known). The arrival of such exotic forces could hardly have escaped the notice of the Indian Army observer in the State, Lt: Colonel Kashmir Singh Katoch) "(Page 131) "If Mahajan's account of his travels is true, and he was quite emphatic that he refused to return to the State until Srinagar airfield was firmly in Indian hands (reflecting both the Maharaja's determination that Indian assistance should physically arrive before he finally committed himself to handing power to Sheikh Abdullah and, one must presume, Mahajan's personal reluctance to run the slightest risk of falling into the hands of Pathans), then it would appear that the Indian intervention actually took place before the formalities of Accession had been completed ....:'(Page 136) If we accept the chronology indicated by Mahajan rather than V.P. Menon, then it rather looks as if the Maharaja's original formal (as opposed to the various covert arrangements) request for Indian military aid, advanced on his behalf by Batra on 24 October but not accepted by the Indian side, made no reference to Sheikh Abdullah being given office, an idea which the Maharaja found extremely distasteful; and it is probable, moreover, that accession was not offered at this stage. The Sheikh Abdullah feature, discussed by Nehru with Sheikh Abdullah himself on 25th October, was surely finalised at the meeting at Nehru's house on the 26th October already described. A draft letter would have then prepared for the Maharaja's signature, that letter published as having originated from him on 26th October though, in fact, it was only brought to him in Jammu on the following day alongwith Mountbatten's acceptance of its terms. This charade, of course of which Mountbatten must have been aware (unless he had been shown a fraudulently signed letter from the Maharaja, and perhaps , Menon had lied to him about a journey to Kashmir with Mahajan on 26th October), would have required a measure of falsification of the record both as to chronology as to origination of the proposals. As we have seen in Chapter 4, such manipulations of documentation were not unknown in the British Government of India's conduct of political matters. T he actual Instrument of Accession (which made no mention of the crucial Sheikh Abdulla element and was, therefore, in the context of the moment just a formality) was, in fact, no more than a printed form, not unlike an application for a driving licence, with blank spaces left for the name of the State, the signature of the Maharaja and the date and it also captioned a printed form of acceptance which required dating and signature by Mountbattan as Governor‑General. It would have presented no great difficulties to arrange for Mahajan to carry back to Jammu with him on 27th October, such a form, to be pre‑dated 26th October, with the Governor‑General 's acceptance already signed and dated 27th October, for the Maharaja to sign at a moment convenient to him." (pages 136 and 137). In his recent interview with Amera Saeed, appeared in esteemed English Daily (MUSLIM) of Islamabad; on Friday, November 27, 1992, he further highlighted the truth of bogus and fraudulent Instrument of Accession. Relevant portion is: "The problem we have got now is that somebody is lying through his teeth, because here we have a whole set of documents which are dated the 26th (of October 1947) and accepted by Mountbatten on the 27th, and which can't possibly have been signed on the 27th. And then when we look at the documents and we wonder that they are, anyway. Because, what was produced was printed documents relating to accession during the British period. It can't possibly be the document that Mountbatten's people are talking about, because Mountbatten, in the discussions, of which we have several records of the accounts on the 26th, when he says we must have this accession, says `Let an instrument of accession be drafted'. "Now this is standard form, printed for August, with August crossed out, and October put in, which can't possibly be what they are talking about. So I think and this is the most important discovery I have made ‑‑‑ that there was no document at all. I was in the India Office Library a month ago, and I met a Professor Husnain, who has been an archivist of the Jammu and Kashmir State, and he says that they have been looking for the past forty‑three years to find the original Instrument of Accession and never found it! There isn't one! When you come to think of it, having got the Indian troops in, why sign?"

77. We may also add the list of events leading to fraudulent accession manoeuvred by India, by reference to utterance from the horse's mouth. Mohan Krishen Teng, a Hindu author, in his book "KASHMIR ARTICLE 370", recasted the political events, points of difference between the Kashmir leadership and Indian rulers, the pressure built on Kashmir leadership and its ultimate succumbing to pressures. This evidence fully corroborates the analysis of Professor Alastair Lamb. We may liberally quote the relevant excerpts as: "Hari Singh did not commit himself to accept any future Constitution of India. However, he reserved the right to enter into agreements with the Government of India under any future Constitution of India. The instrument of accession did not effect the continuance of the sovereignty of the Ruler in and over the State or the validity of any law in force in the State, save as provided by or under the Instrument of Accession. (Page 45) The Conference leaders insisted that the obligations undertaken by the Maharaja by virtue of the Instrument of Accession were subject to their approval. Therefore, they did not accept the accession of the State, as it was envisaged by the State Department or the Maharaja. In fact, they visusalised the accession of the State as an administrative arrangement which was arrived at between them and the Government of India, not between the Maharaja and the Government of India. The Conference leaders, had before .the partition of India, committed themselves to United India, which they had presumed would be based upon reorganisation of the British India and the Indian States into autonomous political identities, mainly based upon the reconciliation of communal balances. The partition had, however, destroyed the basis of Indian unity the Conference leaders had visualised and liberated the two Dominion from the constraints any communal balances imposed upon them. The Constituent Assembly of India had opted for a Union of India based on the secular integration of the people of India rather than the recognition of communal balances and federal autonomy. In broad terms the Conference leaders took the position which underlined: "(i) the Jammu and Kashmir State was a Muslim majority State and in order to protect Muslim identity, it could not be brought within the political organisation of India, which is dominantly Hindu; (ii) the existing arrangements between the Maharaja and the Government of India could not form the basis of the constitutional organisation of the State or determine the future of the State's constitutional relations with the Domonion of India: (iii) the future Constitution of the State and the constitutional relations between the State and the future federal organisation of India would be determined by fresh agreements between the Interim. Government and the Government of India: (iv) the stipulation of the Instrument of Accession would be treated as redundant to the extent such stipulations brought the State within the jurisdiction of the Dominion of India. The National Conference leaders pledged their support to the accession of the State, but they refused to accept the secular integration of the State in the federal organisation of India. That claimed that the Jammu and Kashmir State was a Muslim majority State and as such it could be placed in the Indian political organisation only on the basis of communal balances, as a separate and autonomous political entity, which did not form a part of the constitutional organisation of India. (Pages 47 and 48) "While the Indian leaders were trying frantically to find a solution of the problems in the State, and remove the Maharaja, Sheikh Muhammad Abdullah threw a bombshell in their midst. In. a Press statement, he gave to an influential English newspaper "Scottman" he pleaded for the independence of the State. Accession on either side cannot bring peace", Abdullah stated, "We want to live in friendship With both Dominions. Perhaps a middle path between them, with economic cooperation with each, will be only way of doing it. But an independent Kashmir must be guaranteed not only by India and Pakistan, but also by Britain, the United States and other members of the United Nations". Sheikh Muhammad Abdullah added further, "During the communal riots in the Punjab after partition, we tried in our humble way to stem the wave of fanaticism. That is why I urged we should wait before deciding our affiliation. I pleaded with both Dominions to help us first to win internal emancipation before asking us to choose! India replied by refusing to make a standstill agreement with the Maharaja; Pakistan did not do so. When during the crisis India accepted the Maharaja's accession, Pandit Nehru insisted that it was only provisional and that people must decide later." (Pages 51 and 52).

78. The aforesaid events fully coincide, without reservations, that any attempt at regional integration of any part of the State would not only negate the principle of right of self‑determination promised to the people of Kashmir at the forum of the United Nations, rather it shall be suicidal to the cause as a whole. The tremendous sacrifices of Kashmiris may go Waste. A sane approach to the proposition, therefore, would be to desist from integrating the Nothern areas to any Province of Pakistan, unless the future of the State, as a whole, is settled in exercise of right of self‑determination as promised. We may add another reason in support of our contention by reference to the provisions of Pakistan Constitution. In consistent` with the policy, the framers of the Constitutions of the Islamic Republic of Pakistan in 1956, 1962 and 1973, made an express provision in the Constitutions in respect of the State of Jammu and Kashmir. Article 257 of the present Constitution of Pakistan postulated: "When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State." These provisions are consistent with the policy of Pakistan in relation to the Kashmir State. It is clearly postulated that the State of Jammu and Kashmir, as such, is a single entity. Its future is yet to be determined in the light of the terms and conditions of the act of accession. An open scope of terms and conditions of accession has been deliberately preserved by the framers of the Constitution. Therefore, any approach of regional integration of any part of the State is likely to demolish the whole edifice of the cause of Kashmir, undertaken and advocated by Pakistan.

79. It will not be out of context to state that immediately after liberation, the local people of the Northern areas offered accession of the Northern areas to Pakistan. The proposal was not accepted by the Government of Pakistan as it was likely to lead towards a division of the State. Professor Josef Korbel, in his book "DANGER IN KASHMIR", at page 92, referred to that aspect of the proposition and explained that the people of Gilgit area seized the Maharaja's agent and through a bloodless revolution, established their own local Government, which immediately acceded to Pakistan. The Karachi Government, however, cautiously, refrained from accepting the act of accession, possibly because it feared that such acceptance might imply their approval to a division of the State. As a rule of caution, therefore, it is least advisable to integrate any part of the State in an irrational fashion. As such act may imply acceptance of the present Line of Control as the international border between India and Pakistan.

80. Next, we proceed to resolve another keypoint, controverted between the parties. It is the point of jurisdiction of this Court. It may be mentioned that respondent No. 1, prior to filing its written statement, moved an application containing the objection of jurisdiction. It was prayed that before adverting to the merits of the case, the question of jurisdiction of the Court may be resolved first. The application was turned down, as, in view of this Court, such an objection could be raised in the written statement, alongwith other controverted points. In its written statement, respondent No. 1 reiterated its objection relating to jurisdiction. Mr. Mumtaz Ali Mirza, the learned Counsel for the Government of Pakistan, emphasised that in view of the provisions of the Interim Constitution Act, the jurisdiction of this Court is confined to the liberated territories of the State under the administrative control of the Government and not beyond that. In such situation, it was emphasised that this Court could not lay its hands on the merits of the controversy raised in the petition. The substance of the objection confined to territorial jurisdiction. Thus, on making a comparative study of Article 226 of the Indian Constitution and Article 192 of the Pakistan Constitution, it was suggested that the proposition pertaining to Northern Areas being beyond the territorial jurisdiction of this Court, may not be resolved. Reference was made to: ‑ (1) PLD 1965 SC 201; (2) PLD 1981 Peshawar 57; (3) PLD 1956 SC (India) 291; (4) AIR 1954 SC 207 and (5) AIR 1953 SC 210.

81. The word "jurisdiction" ordinarily signifies power and authority. The term "Court's jurisdiction" refers to power and authority of Court to decide issues among citizens or between citizens and State, in exercise of its judicial functions, including its verdict. The limitations on Court's jurisdiction confine to: (i) the subject‑matter; (ii) territorial extent; (iii) pecuniary value of the claim involved; (iv) Nature of the dispute; and (v) amenability of the parties to the process of the Court.

82. In present case, objection to jurisdiction of the Court confines to: (i) territorial limits; and (ii) amenability of the Pakistan Government to the process of this Court. The objection is to be settled in the light of the definition of the term "Azad Jammu and Kashmir" as defined in section 2 of the Interim Constitution Act, 1974. We propose to seal with the first limb of the objection relating to territorial extent of jurisdiction. As the question of jurisdiction is to be resolved by construing the provisions of the Constitution, we deem it expedient to have an appraisal of the rules of interpretation of the Constitution.

83. The orthodox view of interpretation of Constitution is that the provisions of Constitution may be construed strictly by adhering to ordinary grammatic meanings of words and phrases used therein. The counter‑view, rather the modern view, however, is otherwise. The second view pleads that Constitutional provisions may be construed liberally, but within the limits of its scheme, objectives and purposes desired to be attained. Further emphasis is made on keeping in sight the structure of body politic.

84. Mr. A.K. Brohi, a celebrated jurist, in his "Fundamental Law of Pakistan" analysed the proposition of interpretation of Constitution as: " .... There are two rival concepts that will contend for mastery in the interpretation of constitutional instrument in our country. These may be called tire American theory of progressive interpretation and the British or the Commonwealth theory which insists upon a literal interpretation of constitutional instruments, that is the theory that says that intention of the Legislature is to be gathered from the words used. The rules adopted for the interpretation of Colonial and Pre- Independence Indian Constitutional Legislation are the same as those accepted for the interpretation of the statutes in England ..... Having stated the fundamental viewpoint which their Lordships of the Privy Council have often approached the questions concerning the construction of Colonial and Dominion Constitution Acts, we are now in a position to appreciate the somewhat distinguishable attitude which has been adopted by the United States Supreme Court to the problem of interpreting the Articles of the United States Constitution. We would call the American viewpoint as yielding place to "progressive interpretation" ‑‑ as opposed to the English "Literal" or "grammatical" interpretation of constitutional instruments.."

85. In support of the modern view of interpretation of Constitution, known as the liberal view, reference is made to Corpus Juris Secondum, Volume 16, Edition 1984, Note 18, at page 64, as: "In construing a constitution, its essential character must always be kept in mind, and a constitution should be construed with reference to, and in the light of, well‑organized and fundamental principles underlying all constitutions. It is to be regarded as fundamental law to which all other laws must yield, and should be interpreted in such a manner as to carry out the broad general principles stated therein. Although the meaning or principles of a constitution remain fixed and unchanged from the time of its adoption, a constitution must be construed as if intended to stand for a great length of time. A constitution is a living document which is progressive and not static. As a general rule, a constitutional provision should be broadly and liberally construed and therefore, should not receive too narrow or literal an interpretation, rather, the meaning given to a constitutional provision should be applied in such a manner as to meet new or changed conditions as they arise without departing, from the basic principles contained in the constitution. Accordingly, expediency has no application in interpreting constitutions, nor does public clamor, majority desire, or apparent need. In any event, exceptions to general constitution provisions must be narrowly and strictly construed.

86. The construction of statutes as analysed by Crawford at Note No.165, page 258, suggests as: "

165. Statutes as a Whole.‑‑ Inasmuch as the language of a statute constitutes the depository or reservoir of the legislative intent, in order to ascertain or discover that intent. the statute must be considered as a whole, just as it is necessary to consider a sentence in its entirety in order to grasp its true meaning. Consequently, effect and meaning must be given to every part of the statute which is being subjected to the process of construction ‑‑ to every section, sentence, clause, phrase and word... Moreover a statute should be construed as a whole because it is not to be presumed that the legislature has used any useless words, and because it is a dangerous practice to base the construction upon only a part of it, since one portion may be qualified by other portions. In addition to being subject to qualification, words are not always used accurately by the legislature. The thought conveyed by the statute in its entirety may reveal the inaccurate use. Hence, the Court should, when it seeks the legislative intent, construe all of the constituent parts of the statute together, and seek to ascertain the legislative intention from the whole Act, considering every provision thereof in the light of the general purpose and object of the Act itself, and endeavouring, to make every part effective, harmonious, and sensible."

87. In British Coal Corporation's case, AIR 1935 Privy Council 158, Lord Chancellor Viscount Sankey, who delivered the verdict of the Court, observed: "Indeed, in interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted." In D. Parraju's case, AIR 1952 Calcutta 610, while relying on the aforesaid view of the Privy Council Mr. Justice Das construed the provisions of the Constitution, with the emphasis: "Being a provision contained in a written Constitution, the Article must receive a construction which is most beneficial to the widest possible amplitude of its powers.'

88. The Supreme Court of Pakistan invariably deliberated over the proposition of interpretation of Constitution and laid down its dictum in uniform manner. Reference may be made to Fazal‑ul‑Qadir Chaudhry's case, PLD 1963 SC

486. The proposition once again received attention of the Court in Saeed Ahmad Khan's case, PLD 1974 SC

151. Leading principles of interpretation of Constitution were enunciated as: "(i) The Constitution is a fundamental or organic or supreme law standing on a somewhat higher position than the other laws of the country; (ii) The Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere; (iii) The Courts are creatures of the Constitution; they derive their powers and jurisdiction from the Constitution and must confine themselves within the limits set by the Constitution; (iv) Under a Constitution prescribing a system where there is a trichotomy of sovereign power the judicial power must from the very nature of things be vested in the judiciary; (v) Thus, the judiciary does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction; (vi) In the latter case an ouster of jurisdiction is not to be readily inferred, because the consistent rule is that provisions seeking to oust the jurisdiction of superior Courts, even by a constitutional provision, are to be construed strictly with a pronounced leaning against ouster; (vii) It is not, however, the function of the judiciary to legislate or to question the wisdom of the law‑giver if the law has been competently made without transgressing the limitations of the Constitution. If a law has been competently made the judiciary cannot refuse to enforce it even if the result be to nullify its own decisions; (viii) The law‑giver has also every right to change, amend or clarify the law if the judiciary has found that the language used conveys an intent different from that which was sought to be conveyed by the law‑giver; (ix) The Constitution has to be construed like any other documents reading it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution; (x) As far as possible each provision of the Constitution should be construed so as to harmonize with all the others."

89. The Supreme Court of Azad Jammu and Kashmir analysed the proposition of interpretation of Constitution in Kashmir Timber Corporation's case, PLD 1978 SC (AJ & K) 42 as: "From the authorities the following principles of interpretation of statutes emerge:‑‑ (i) that a Constitutional instrument should be read as a whole and its provisions construed harmoniously; (ii) that the Courts, as far as possible, should lean in favour of saving rather than destroying the provisions of a Constitution; (iii) that the empowering provisions of an enactment should be liberally construed; and (iv) that if a term or expression used in an enactment has various constructions, those should be accepted which accord with the context‑" In Sardar Muhammad Abdul Qayyum Khan's case, PLD 1983 SC (AJ&K) 140 it was observed: "While interpreting provisions of Constitution, every part and every word is to be given effect to and construction rendering any provision meaningless or inoperative to be avoided." It was further held : "Court to be duty bound to have recourse to whole instrument, if necessary, to ascertain true intent and meaning of any particular provision."

90. In Jammu and Kashmir Tehrik Ammal Party's case, PLD 1985 Azad J&K 95, this Court, among others, also examined the proposition of interpretation of Constitution as: " ‑‑Construction‑‑ Meaning and intention of legislature should be ascertained from language of Statute itself and words used in Statute or Constitution should be construed in their ordinary dictionary meaning, if no ambiguity arises in doing so ‑‑ Provisions of Constitution should not be interpreted in a narrow and padestal sense but in a broad and liberal spirit which does not mean that Court should be free to stretch or pervert language of an enactment in interest of any legal or Constitutional theory." In Nisar Ahmad's case 1982 PCr.LJ 1287 the intention of the framers of the statute was construed by resort to its preamble. It was observed: "Preamble to be part of Act, meant to explain its purpose and in fact to provide key‑note to the Act fixing intention of law‑makers and also goal to be achieved by Legislature."

91. The aforesaid authorities lead to the conclusion that Constitution provisions may be construed: (i) broadly and liberally, as Constitution is a living document. It is progressive and not static; (ii) it should not receive too narrow or literal interpretation; rather, it should be construed in such manner as to meet new or changed conditions as they arise, but without departing from the basic principles; (iii) the intent of the framers of the Constitution or statute is to be construed by considering whole of the Constitution, by assigning meaning to its every part; (iv) the provisions may be construed to save, rather destroy, the scheme of the Constitution; (v) when more than one meaning may be construable, such significance may be given to the provisions which are most close to the scheme and structure of the Constitution; (vi) Constitution or statutes may be construed to maintain its harmony; and (vii) Preamble of the Constitution may be helpful to construe the scope of objectives and intent of its framers.

92. In the light of the grund norms applicable to interpretation and construction of Constitution, as listed above, next, we advert to the scheme, objectives and character of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is undenied that the structure, position and status of Azad Jammu and Kashmir is unique among the comity of Governments and States in the world. Likewise, the scheme, structure and position of its Constitution is equally unique. This is so as the political status, as it emerged on constitution of the modern State in 1846; its status at the time of independence in 1947; the emergence of dispute pertaining to its accession; the dispute over its future status being still on the agenda of the Security Council; passing of various resolutions by the Security Council and the United Nations Commission for India and Pakistan, divided defence control on one part of it under India and the other part under Pakistan, presence of two Governments, one in the Indian‑controlled area and the other in the liberated area, are unparallel to any other State in the world in 20th Century.

93. Another noticeable characteristic feature of the Constitution Act pertains to the style and character of the Government. Under section 2, the term "Government" has been defined as `the Azad Government of the State of Jammu and Kashmir'. In order to give true meaning to its definition, the scheme of Constitution envisaged various institutions, including: (i) the President; (ii) the Prime Minister (with Council of Ministers); (iii) the Legislature; (iv) the Council; (v) the Supreme Court and the High Court; (vi) the Chief Election Commissioner; (vii) the Auditor‑General; and (viii) the Council of Islamic Ideology. It has its own national flag and national anthem. The Azad Government has a dual character as its fabric is blended with federal and unitary form of Government.

94. In consequence of the upsurge of the masses against the oppressor ruler and liberation of large areas, it was resolved to form a provisional government, with the claim of Government of whole of the State. The provisional Government was announced on October 24, 1947, with its capital seat at Pallandari in Poonch. The declaration issued by the provisional Government on its emergence contained the background of the liberation movement, liberation of part of the State and the objectives in view, for formation of the provisional Government. The declaration being of vital importance, is reproduced: "The Provisional Azad Government, which the people of Jammu and Kashmir have set up a few weeks ago with the object of ending intolerable Dogra tyrannies and securing to the people of the State, including Muslims, Hindus and Sikhs, the right of free self Government has now established its rule over a major portion of the State territory and hopes to liberate the remaining pockets of Dogra rule very soon. In view of these circumstances it has been reconstituted with Mr. Ibrahim, Bar‑at‑Law of Poonch as its provisional head, and its headquarters have been moved to Pallandari in Poonch. The new Government represents the united will of the Jammu and Kashmir State to be free from the rule of the Dogra dynasty which has long suppressed and oppressed the people. The movement of liberty which has culminated in the formation of the present provisional Government has a long history dating from 1929. Thousands of Jammu and Kashmir people, including members of all communities, have suffered death and imprisonment in the cause of this movement. One of its forms was the Quit Kashmir Movement launched in the Kashmir valley last year. It will be recalled that Pandit Jawaharlal Nehru as a friend of the suffering people of Indian States went to help this movement at the time but was not allowed to enter the State territory under the orders of the ex‑Ruler Hari Singh. The tyrannies perpetrated by the Raja and his officials and his troops on the people increased with the increase in the desire of the people for freedom and self‑Government. Recently a prominent Hindu patriot, who wanted to proceed to Karachi and New Delhi to represent the intolerable conditions in the State to our neighbouring Dominions of Pakistan and India was arrested by the ex‑Ruler's officials. The united will of the people has, however, overcome the organised violence of the Ruler's armies. He and his so‑called Prime Minister have fled from Kashmir and will perhaps soon flee from Jammu as well. The Provincial Government, which is assuming the administration of the State is most emphatically not a communal Government. It will include Muslims as well as non‑Muslims in the provisional Cabinet which will serve the people, the temporary purpose of restoring law and order in the State and enable the people to elect by their free vote a popular legislature and a popular Government. The Provisional Government entertain sentiments of the utmost friendliness and goodwill towards the neighbouring Dominions of India and Pakistan and hopes that both the Dominions will sympathise with the people of Jammu and Kashmir in their efforts to exercise their birthright of political freedom. The Provisional Government is further anxious to safeguard the identity of Jammu and Kashmir as political entity. The question of accession of Jammu and Kashmir to either Dominion cab only be decided by the free vote of tire people in the form of a referendum. The Provisional Government will make prompt arrangements for this and hopes to invite independent observers to see that the question is decided by the free will of the people." It is evident from the Declaration recapitulated above that the character of the Azad Government was provisional till the liberation of whole of the State. It is represented by the united will of the people of Jammu and Kashmir to attain freedom from the Dogra dynasty. The united will represented all communities residing in the State. An undertaking was also given that the Provisional Government shall safeguard the identity of Jammu and Kashmir as political entity and that the question of accession of the State to either Dominion was to be decided by the free vote of the people in the form of free plebiscite.

95. As the war of liberation was in progress, no Constitution was framed immediately after the formation of the Provisional Government and the administration was run with the help of Rules of Business. The first Rules of Business were framed in 1948. These were supplemented in 1950. with the understanding that the future of the State was to be determined in a free plebiscite as guaranteed by the resolutions of the Security Council and the United Nations Commission for India and Pakistan, need was felt to give democratic shape to the Government and its institutions. As time passed on, it was realised that the Government will be given a democratic character. Thus, in 1960, limited franchise was introduced in the shape of Azad Jammu and Kashmir Basic Democracies Act, 1960. the President was elected by the electoral college comprising the Basic Democrats directly elected in Azad Kashmir and from refugees of the State settled in Pakistan. A Council representing the natives of Azad Kashmir and refugees settled in Pakistan was also constituted of elected representatives. As the desired purpose was not served, it was demanded that the national institutions may be given a true. representative cover by introduction of the system of adult sufferage. The demand was accepted. The Azad Jammu and Kashmir Government Ad, 1970 was promulgated. By virtue of the provisions of the Act, the President of Azad Jammu and Kashmir was elected by the electorates directly. A legislative Assembly was also formed by its directly elected members.

96. In 1974, it was deemed expedient to introduce parliamentary form of Government, to harmonise it with the system prevailing in Pakistan. The Act of 1970 was modified and re‑enacted in the shape of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

97. Before independence, there was a High Court of Judicature in the State, established in 1995‑Bikrami. On liberation of part of State territories and formation of the Provisional Government, High Court was immediately established under the provisions of the Azad Jammu and Kashmir Courts and Laws Code Act, 1948. It exercised jurisdiction as conferred under the aforesaid Act. On enforcement of the Act 1970 and thereafter the Interim Constitution Act, 1974, the High Court already established was given full protection. The writ jurisdiction was conferred on the High Court in 1972.

98. In the Interim Constitution Act, the relevant provisions relating to the High Court are contained in section

43. Section 43(1) postulates that there shall be a High Court for Azad Jammu and Kashmir which shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Assembly. Subsection (2) provided that the person holding office as Chief Justice or other Judge of the High Court immediately before the commencement of this Act; shall be deemed to be the Chief Justice or the other Judge, as the case may be, appointed under this Act.

99. Jurisdiction of the High Court was provided under section

44. The point under consideration being relevant to the jurisdiction of the Court, it is deemed expedient to reproduce these provisions as under:‑‑ "

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) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or (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; or (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) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act. (3)

(4)

(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 jurisdiction has been conferred on the High Court by the interim Constitution Act in addition to other laws. Here, we propose to confine our deliberation to the scope of jurisdiction contemplated under the Interim Constitution Act.

100. Under subsection (2)(a)(i), the High Court is empowered to make an order directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which is not permitted by law to do or to do that which he is required by law to do. The direction issued under clause (a)(i) is to confine to performance of functions by a person in connection with the affairs of Azad Jammu and Kashmir or a local authority. Under clause (a)(ii), authority is conferred on the High Court to declare that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local. authority has been done or taken without lawful authority and is of no legal effect. It is pertinent to note the distinction in both spheres of exercise of jurisdiction described under clauses (a)(i) and (ii). In the first case, directions or orders are to be made in connection with the affairs of Azad Jammu and Kashmir whereas under the second clause, authority has been conferred to make an order declaring an act or proceedings as unlawful, performed in connection with the affairs of the State.

101. Under clause (b)(ii), the High Court is empowered to make an order requiring a person holding a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold such office. Clause (c) further empowers the Court to make an order or give direction to the person or authority, including the Council and the Government, exercising power or performing functions in relation to Azad Jammu and Kashmir, for the enforcement of fundamental rights postulated by the Act.

102. The term `Person' used in the aforesaid provision has been defined in section 2 of the Act as: "`Person' includes any body politic or corporate." It has been redefined in subsection (5) of section 44 as: "`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, the High Court or a Court or Tribunal established under a law relating to the Defence Services."

103. Mr. Mumtaz Ali Mirza, the learned Deputy Attorney‑General, invited our attention to the definition of the term 'Azad Jammu and Kashmir' as defined in section 2 of the Act and argued that the territorial extent of jurisdiction of this Court confines to the liberated territories, under the administration of the Government, excluding the Northern Areas. In view of the nature of the objection, it will be particularly relevant to resolve the proposition at this level. The term 'Azad Jammu and Kashmir' has been defined under section 2 of the Act as: "'Azad Jammu and Kashmir' means the territories of the State of Jammu and Kashmir which have been liberated by the people of that State and are for the time being under the administration of Government and such other territories as may hereafter come under its administration. It is evident that the term Azad Jammu and Kashmir" pertains to the territories of the State which have been liberated by the people of the State and are for the time being under the administration of the Government. It also includes the territories which may come under its administration. In order to satisfy that a particular area or territory of the State formed part of Azad Jammu and Kashmir, it was imperative to establish: (i) that such territory or area of the State was liberated by the people of the State; and (ii) that such area was under the administration of the Government.

104. In order to satisfy the first condition, it is already held elsewhere that the Northern Areas are part of Jammu and Kashmir State. These areas were liberated alongwith other areas of the State, in 1947. At this stage, we have to satisfy that these areas were equally liberated by the people of the State. The J6int of liberation of the Northern Areas is a question of fact. This question of fact is to be established by positive proof available on record. The petitioners, in support of their claim, made reference to the questioned Agreement of April 28, 1949, whereby administrative control of the Areas was handed over by the Azad Government, with the approval of the President of All Jammu and Kashmir Muslim Conference, to the Government of Pakistan, and the Sino -Pakistan Border Treaty executed on March 2,.1963. We have reproduced the Sino‑Pakistan Treaty elsewhere and observed that the Northern Areas were part of Jammu and Kashmir State. At this stage, we have to satisfy the other angle of the proposition and that is, that these areas were liberated by the people of the State. In support of this part of the proposition, we may refer to: (i) "Kashmir Saga" by Sardar Muhammad Ibrahim Khan, Founder President of the State of Jammu and Kashmir. At page 11 of the book, it is disclosed: "A question now has been raised in the Pakistan press and in the political circles that Northern Provinces of the State, namely, Gilgit, Ladakh and Baltistan be either annexed to Azad Jammu and Kashmir State or to Pakistan. The question of a part of the State acceding to Pakistan does not seem feasible, and if it is done, it is going to affect very badly Pakistan's cause in United Nations. In my opinion these Northern Provinces of Jammu and Kashmir State should go to Azad Jammu and Kashmir because they are a part of Kashmir State and have been so through ages. These areas should be governed by the appointment of a Governor and the legal jurisdiction of the Supreme Court and the High Court should extend to these areas so that the people of this area also benefit from an organised judicial system. It is a question which yet has to be debated and decided. Only a very strong Central Government of Pakistan can be in a position to solve this matter one way or the other. In the meantime the area is governed by Military and Civil administration with wide autocratic powers. This position jeopardizes the peoples' rights in this area. It must be said that a lot of credit is dues people and their ancestors who fought for freedom along with the rest of Kashmiris in 1947 " It further enumerates the events, at pages 50, 73 and 76: "The revolution, which started in Western Kashmir, Gilgit and Ladakh, and eventually spread throughout, would not have been ignited so rapidly, except for the brutal treatment which Dogra soldiers meted out to the people. (page 50). The area of operation was mainly divided into two large sectors, Muzaffarabad to Bhimber, and Bhimber to Jammu. Gilgit was left out because the Gilgit organisation was separate The Dogra army Muslim Officer raising a local rebellion had established an administration of their own. This was effectively arranged with officers who were posted in Gilgit by the Dogra Government. Each sector was given a separate quota of rifles for operation and placed under an Army Leader. Similarly, different leaders were put in charge of different sectors to provide the necessary political link. Before the whole scheme could operate in an organised and effective manner, we needed an army to fight an army. That mere armed crowds could not possibly achieve much was realised in the very beginning. It seemed, therefore, that the sine qua non of the whole plan was that a people's army be organised. (page 73). In spite of all this, since October 27, 1947 the 'Azad Army' (name given to the People's Army of liberation) was able to conquer from the Indian Army practically the whole of Poonch, with the exception of the city of Poonch. The whole of Rajouri and Mirpur districts, right down to Akhnoor, were captured by us, while the enemy held Nowshera, peace‑time army stronghold throughout. On the Muzaffarabad front we went right upto Srinagar and then had to retreat to Chikothi, which position we hold ever since. We went right upto Sopore, conquering the whole of Hindwara Tehsil. On the Gilgit front the whole of Gilgit was conquered and also the whole of Ladakh right down to the position thirty miles from Srinagar. The army which operated in Ladakh under most difficult conditions of snow, without any line of communication, must be given the greatest credit. For regular soldiers this would seem an impossibility but during the Azad Kashmir Movement miracles were performed by our soldiers. Whether history will ever give this movement the credit it deserves is a separate matter. Of course, to expect any reward from any human agency for what the people did would be a great fallacy." (Page 76). (ii) "Danger in Kashmir" by Josef Korbel (Pages 5, 6 and 92): "The term `Kashmir', as is generally used, is actually not accurate. It applies to one part of the entire territory, the official name of which is the State of Jammu and Kashmir. The stage consists of several regions. Its heart is the famous Vale of Kashmir. South of it is the Jammu Province, to the east is Ladakh, and north of it, Baltistan; farther north are the regions of Hunza and Nagir, and west of them, the Gilgit Agency, composed of several political districts. West of the Vale are the districts of Muzaffarabad, Riasi, Poonch and Mirpur. Kashmir's irregular borders, many miles of which are as yet not internationally determined, touch a number of States. Beginning at its most north‑westernly point, Kashmir borders upon Sinkiang, the line running south and east for some 400 miles; then for about 450 miles it finds itself neighbour to Tibet. Between. India to the south and Kashmir to the north, the border continues for some 350 miles, then joins the boundary of Pakistan and turning north‑west for about 700 miles finds Afghanistan. Here the border swings east for about 160 miles, where it ends in a somewhat unclear situation‑‑on some maps it joins the Soviet Union for about 20 miles, while on the others (including some Russian maps) it ends at a common point with the borders of both Sinkiang and Russia. (Pages 5 and 6). Only one region ‑‑ Gilgit ‑‑ was not affected by the violent struggle. Here the people seized the Maharaja's agent and through a bloodless revolution established their own local government, which immediately acceded to Pakistan. The Karachi Government, however, cautiously refrained from accepting the act of accession, possibly because it feared that such acceptance might imply their approval of a division of the State." (page 92).