1999 PLP 1313 (CLC)

BASHARAT AHMAD SHAIKH, J.‑‑‑ The High Court admitted to regular hearing a writ petition filed by the respondent to challenge Ehtesab Act, 1997 as well as proceedings being taken under the said Act against respondent. A learned Judge in the High Court granted interim relief that respondents in the writ petition, Azad Government, Chief Ehtesab Commissioner, Director- General, Ehtesab Cell etc. "should restrain to arrest the petitioner under the Ehtesab Act, 1997, till further order, subject to objection from other side". The admission order as well as the interim relief were challenged by filing petition for leave to appeal which was granted giving rise to the present appeal. We have heard the learned counsel for the parties. It is vehemently contended by Kh. Sahahd Ahmed, the learned counsel for the appellants, that the High Court granted interim relief in violation of Rule 34 of the High Court (Procedure) Rules, 1984. He stated that neither a seven day requisite notice, was given nor was the said Rule relaxed by the High Court. He contends that violation of Rule 34 renders the order as patently illegal. He relies on Aisha Hameed Qadri v. Nomination Board an 6 others 1997 SCR 1, Abdul Khalil v. Manzoor Ahmad and 5 others 1997 SCR 85 and Azad Government and another v. Sardar Pervaiz Khan 1994 SCR

254. In reply Mr. Ghulam Mustafa Mughal, the learned counsel for the respondent, could not defend the interim relief granted by the High Court in view of the judgments cited by the learned counsel for the appellants. However, he submitted that ' in case stay order is vacated it may be ordered that the application for interim relief shall be deemed to be pending in the High Court and till arguments are heard ad interim relief may be granted by this Court. He relies on judgment in Minister of AKLASC and another v. Rasheed Farooq Dar and another Civil Appeal No.55 of 1995 title Muhammad Aslam and others v. Kh. Nazir Ahmad and others Civil Appeal No.88 of 1997, titled in which similar course was adopted by this Court. It is submitted by him that Ehtesab Bench of the High Court, which is the only forum which can grant bail to the respondent, has not so far been constituted and if ad interim relief is not granted by this Court for the intervening period he will be left without any forum to approach. The violation of Rule .34 of the High Court (Procedure) Rules renders the interim relief granted to the respondent as patently illegal in view of the previous judgments on this point. The interim relief is, therefore, vacated. However, the application for interim relief moved by the respondent Tariq Farooq in the High Court shall be deemed to be pending. In view of the .fact that the respondent will be left with no forum it is ordered that the respondent shall not be arrested for one week. Meanwhile, the parties are directed to appear before the High Court in Muzaffarabad on Monday next (16th instant). It is vehemently contended by the learned counsel for the appellants that according to Rule 33 of the High Court (Procedure) Rules, 1984 as well as Rule 3 of Institution of Petitions and Grant of Writs Rules, 1975 the writ petition should have been heard by a Division Bench. This aspect of the matter may be looked into by the learned Chief Justice of the High Court. H.B.T./60/SC(AJK) Order accordingly.