1994 PLP 1108 (CLC)

The petition is moved under the provisions of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, seeking issuance of writ of certiorari and mandamus, against the respondents, to the effect that they may refrain from holding elections in constituency L.A. 20, Poonch 4, scheduled to be held on February 2, 1994.

2. It is averred that the Jammu and Kashmir Council for Human Rights, is a Non‑Governmental Organization, actively operating for promotion and protection of human rights, in the State of Jammu and Kashmir. Mr. Iftikhar Hussain Khan,‑petitioner No. 2 is a State Subject and an elector registered in L‑A‑XX, Poonch 4, resident of village Binakha, Tehsil Rawalakot.

3. The general elections of the Azad Jammu and Kashmir Legislative Assembly were held in 1991. It was averred that Sardar Khalid Ibrahim, respondent No. 5, was elected Member of the Legislative Assembly from Constituency LA‑XX, Poonch 4, for tenure of 5 years. He attended the sessions of the Assembly and performed his duties and obligations as Member, with due diligence and honest approach.

4. In August, 1992, it was averred that the Assembly passed a Law relating to Civil Servants in Azad Jammu and Kashmir whereby all ad hoc appointees in Grade‑16 and above, were regularized; in derogation to the provisions of Civil Servants Act, Public Service Commission Act and other relevant laws. Respondent No. 5, lodged a protest against the aforesaid action. of the Government, the majority party in the Assembly and announced that, as protest, he would not join the sessions of the Assembly till the impugned legislation was recalled and all civil servants were sent to Public Service Commission for their examination under law. The political negotiation was undertaken at various levels, as such, respondent No. 5 continued his policy of protest and thereby declined to attend the sessions of the Assembly. In consequence thereof, his seat was declared vacant on account of violation of provisions of the Constitution and Assembly rules. The action of declaring the seat vacant and de-seating of respondent No. 5 has been assailed in the present petition, in addition to announcement of schedule of Bye‑elections by the Chief Election Commissioner The decision has been assailed on the following grounds:‑‑ (i) That the decision relating to de-seating and vacation of the seat of the Assembly occupied by respondent No. 5 was in conflict with the Constitutional provisions and the rules of the Assembly; (ii) that pro forma‑respondent No. 5 remained present at the premises of the Assembly. However, he declined to join the sessions in the light of his decision, in the larger interest of the civil servants. Thus, the conduct of respondent No. 5 was not such so as to hold his presence outside the sessions, as an absence in strict legal terms; (iii) that the decision of deseating the respondent No. 5, was in conflict with popular democratic and parliamentary conventions, as such the decision of the respondents in the shape of punishment was uncalled for; (iv) that the announcement of bye‑elections' schedule by the Chief Election Commissioner and to be held on February 2, 1994, was unwarranted as it was violative of the aforesaid legal principles; and (v) that respondent No. 5 was condemned unheard as he was not intimated of the impugned action of the respondents.

5. The learned counsel for the petitioners have addressed the preliminary arguments for 2 days. The point raised in the petition is, of course, of first impression before this Court, but a condition precedent, as postulated under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is that such an action has to be assailed by an aggrieved person. It was emphasised that the petitioner No. 2 being an elector in the relevant Constituency, is an interested person, as such, by virtue of dictum of the Supreme Court recorded in PLD 1993 SC 37, he was eligible to seek the relief. In the aforesaid authority, the writ petition was admitted in view of the fact . that the petitioner in that case, was not an allottee but resident of Mirpur city, as such, it was deemed that he was interested in the land in dispute. Thus, by virtue of interest, it was deemed expedient to allow him to prosecute the petition. In the present case, the position is considerably different. Sardar Khalid Ibrahim Khan` was elected Member of the Legislative Assembly. He has been deseated. He is available in Azad Jammu and Kashmir, but he has not chosen for reasons best known to him, to invoke the jurisdiction of this Court. In fact, prima facie, he was the aggrieved person, in purview of the term "aggrieved party" used in section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The petition is silent on the score as to why Khalid Ibrahim reconciled with the impugned action. Therefore, when a party who was actually aggrieved in the eye of law, has not come forward to invoke the jurisdiction of this Court, prima facie, it appears unwarranted to allow the relief on the petition of a person who has got remote academic interest in the matter.

6. It is also noticed that petitioner No. 2 enjoys the status of an elector in the constituency. The interest which vests in an elector, confines to exercise of vote in accordance with his choice, in support of a particular candidate. The right of franchise does not extend beyond that. By virtue of holding the by elections, particularly, he is permitted to exercise his right twice. In such manner, he cannot be construed as an aggrieved person by virtue of deprivation of his vested right.

7. The proposition relating to absence or abstention on account of protest on a particular issue, is a mixed question of facts and law. Whether Khalid Ibrahim Khan remained absent for the requisite period, as postulated under section 25(1)(b) of the Constitution, is purely a question of facts. Section 25 (1) (b), provides that the seat of a Member of the Assembly shall become vacant if he is absent from the Assembly without leave of the e Assembly for 30 consecutive sitting days of the Assembly. It has, therefore, to be ascertained as to whether: (i) the Member remained absent; (ii) the absence was without leave; and (iii) it was for 30 consecutive sitting days of the Assembly. The aforesaid 3 stages rested on question of facts, ascertainable by an inquiry or scrutiny of record made available to the Court. No record has been placed with the petition so as to make believe that the finding of the respondents that the Member remained absent from the sittings of the Assembly, as such, his case was hit by the provisions of section 25 (1) (b) of the Constitution. Respondent No. 5 was in a position to verify in support of the claim of the petitioners so as to believe that he never remained absent from the Assembly or that he abstained on account of genuine and valid reason falling within the purview of the parliamentary and democratic conventions. Both the petitioners are stranger to the aforesaid facts. They are not deemed to have any direct knowledge of their own. Thus the affidavits filed on behalf of the petitioners are of no use.

8. It was further argued by the learned counsel for the petitioners that the proposition relating to absence of Member, as a protest against the violation of vested right of the citizens or a section of the citizens, does not tantamount to absence as contemplated by the Constitution. The presence of the Member, at the premises of the Assembly but his failure to join the sessions, whether constitutes his absence in the eye of law or not, of course, was a vital proposition of law requiring interpretation of Interim Constitution and the rules of the Assembly. In that position, it was a fit case for scrutiny of this Court. Since the first condition relating to an aggrieved party is not satisfied, there is no evidence on the question of facts, as such it is least conducive and expedient to settle the proposition of law in the manner as is desired by the petitioners.

9. Mr. Abdul Rahim Bhatti, the learned counsel fog the petitioners; who is member of the Human Rights' Council, stated at the bar that a serious situation of law and order in the constituency in his view, has arisen. There was considerable tension between the parties. Being member of the Human Rights Council, his apprehension may be genuine and respect‑worthy, but the learned Assistant Advocate‑General, present in the Court, has stated at the bar that the Government has undertaken all measures to maintain law and order. The Chief Election Commissioner has also assured that fair and impartial elections shall be held.

10. In presence of the aforesaid assurance given by the learned Assistant Advocate‑General, we have to believe and trust that no one shall take law into his hands and violence shall be discouraged despite heart‑burning due to political rivalry. That may satisfy the learned counsel for the petitioners so far as his apprehension of violence was concerned.

11. As a rule of caution on hearing the learned counsel for the petitioners, it is deemed expedient to observe that in presence of likelihood of violence within the territorial limits of the Constituency, where bye‑elections are to take place, the law‑enforcing agencies shall ensure positively that no innocent life suffers any loss in any manner during the course of bye‑elections or prior to that or thereafter. It is the duty of the law‑enforcing agencies to look after the safety and protection of citizens of the area. The responsibility of the authorities has to be demonstrated by holding bye‑elections in complete peaceful and harmonious atmosphere.

12. The petition is disposed of in limine as no valid ground is found in support of its admission. AA/39/H.CA. Petition dismissed.