Download - HIGH COURT OF AZAD JAMMU & KASHMIR
HIGH COURT OF AZAD JAMMU & KASHMIR
1. Writ petition No. 1747/2020
Date of Institution 11.12.2020 Date of Decision 12.06.2021 Muhammad Waris S/o Kala Khan R/o Gari Habib-Ullah Babar Colony, Tehsil Balakot, District Manshera (Kashmiri Refugee).
Petitioner
VERSUS
1. District Magistrate District Muzaffarabad, Azad Jammu
& Kashmir; 2. Ahsan Naseem R/o Ghari Habib Ullah, Tehsil Balakot,
District Mansehra; 3. District Registration Officer Mansehra for election LA-41
Valley VI, Azad Jammu & Kashmir Assembly office at Ghazikot Lowship Mansehra;
4. Election Commission of Azad Jammu & Kashmir through its Secretary having his office at New Secretariat Lower Chatter Muzaffarabad.
Respondents
2. Writ petition No. 138/2021
Date of Institution 14.01.2021 1. Wasim Bukhash S/o Faiz Bukhash R/o Qisa Khawani Mochi Pura Peshawar, Khyber Pakhtoon Khawa; 2. Zaleef-Ul-Nisa W/o Munsaf Shah R/o Bararkot Ghari Habib-Ullah Khyber Pakhtoon Khawa; 3. Zahid Hussain S/o Khadim Hussain R/o House No. 2078 Muhallah Maher Peshawar Khyber Pakhtoon Khawa; 4. Amber Fatima D/o Asmat Shah R/o Haveli Sayedian Bararkot Mansehra Khyber Pakhtoon Khawa; 5. Ayesha Bibi D/o Asmat Shah R/o Garhi Habib-Ullah Balakot Khyber Pakhtoon Khawa;
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6. Syed Ejaz Hussain Shah S/o Syed Qadret Shah R/o Garhi Habib-Ullah Balakot Khyber Pakhtoon Khawa; 7. Sara Ejaz D/o Syed Ejaz Hussain Shah R/o Garhi Habib- Ullah Balakot Khyber Pakhtoon Khawa; 8. Salma Rasheed W/o Rasheed Maroof Shah R/o Garhi Habib-Ullah Balakot Khyber Pakhtoon Khawa; 9. Nawab Khan S/o Malik Wazir R/o House No. 620 Mohallah Old Kakshal Peshawar Khyber Pakhtoon Khawa; 10. Wadood Ali Haider S/o Yaqoob Ali Malik R/o House No. 192 Street No.13 Gulbhar Peshawar Khyber Pakhtoon Khawa; 11. Nasir Nadeem S/o Mir Ahmed R/o Mohallah Sethian
Bazar Peshawar Khyber Pakhtoon Khawa; 12. Imdad Hussain S/o Abdul Aziz R/o Yaka Toot Peshawar
Khyber Pakhtoon Khawa; 13. Uzma Bibi W/o Tariq Hussain Shah R/o Bararkot Tehsil
Balakot Mansehra Khyber Pakhtoon Khawa; 14. Syed Asim Hussain Shah S/o Syed Tariq Hussain Shah
R/o Bararkot District Mansehra, Khyber Pakhtoon Khawa;
15. Naheed Bibi W/o Syed Zubair Hussain Shah R/o Bararkot Tehsil Balakot, District Mansehra, Khyber Pakhtoon Khawa;
16. Syed Khalid Hussain Shah S/o Munsif Shah R/o Bararkot Tehsil Balakot, District Mansehra, Khyber Pakhtoon Khawa;
17. Fazal Mahmood S/o Gul Muhammad R/o Lahori Gate, Peshawar, Khyber Pakhtoon Khawa;
18. Nawaz Hussain S/o Abdul Haleem R/o Street No.2 Bakhshi Pul Mohallah Kucha Malik Wazeer, Peshawar, Khyber Pakhtoon Khawa;
19. Tariq Hussain Shah S/o Sikandar Shah R/o Bararkot Tehsil Balakot District Mansehra, Khyber Pakhtoon Khawa. (Refugees from Indian Occupied Kashmir).
Petitioners
VERSUS
1. District Magistrate District Muzaffarabad, Azad Jammu
& Kashmir; 2. Abdul Majid Khan S/o Abdul Waheed Khan R/o Lower
Plate Muzaffarabad, Azad Jammu & Kashmir;
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3. Election Commission of Azad Jammu & Kashmir through Secretary Election Commission having his office at Lower Chatter New Secretariat Muzaffarabad.
Respondents
WRIT PETITIONS
Before;- Justice Sadaqat Hussain Raja, CJ.
PRESENT: M/s Sh. Muhammad Saleem and Mr. Muhammad Faisal Turk, Advocates for the petitioners in Writ Petition No. 138/21. Mr. Mushtaq Ahmed Janjua, Advocate for the respondent No.2-petitioner in Writ Petition No. 1747/20; AAG for the official respondents. Mr. Tahir Aziz Khan, Legal Advisor for the Department. ORDER:
Through the above titled writ petitions filed under
Article 44 of the Azad Jammu and Kashmir Interim
Constitution, 1974, similar following relief is solicited by the
petitioners in both the above titled writ petitions:-
“It is, therefore, very humbly prayed that by accepting
the instant writ petition, the order of respondent No.1
No.17640-42 dated 19.11.2020 may kindly be
quashed/set aside to the extent of the petitioner as
against the law on the subject and against the golden
principle of Audi Alteram Partum totally based on malice
and discrimination. Any other relief which the petitioner
is entitled, may kindly be granted in the interest of
justice.”
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As common questions of fact and law are involved
in both the above titled writ petitions, hence, were heard
together and decided as such through this single judgment.
Brief history of the case is that the petitioners
claimed themselves to be 1st Class State Subjects of Azad
Jammu & Kashmir as refugees settled in Pakistan. It is stated
that the petitioners filed an application before Election
Commission of Azad Jammu & Kashmir for enrolment as
voters in Constituency No. LA 41 Valley 06 with ID Cards, State
Subject Certificates and other proofs have also been provided
to the Election Commission of Azad Jammu & Kashmir in
support of their applications. It is contended that the
petitioners’ application was in process, Ahsan Naseem and
Mr. Majid Khan (respondent No.2 in both the writ petitions)
filed an application against the petitioners before the
competent authority. The competent authority without
conducting proper inquiry through order dated 19.11.2020
cancelled the State Subject Certificates of the petitioners,
hence, the instant writ petitions.
The writ petitions have been resisted by the
respondents by filing written statement, wherein the claim of
the petitioners has been negated and prayed for dismissal of
the instant writ petitions.
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The learned counsel for the parties reiterated the
facts and grounds as taken in the writ petitions as well as
written statement, therefore, there is no need to reproduce
the same.
I have heard the learned counsel for the parties
and gone through the record carefully.
The scrutiny of the record reveals that the
petitioners moved applications before the competent
authority for entering their names in the voter lists. The
record also postulates that respondent No.2 (in both the writ
petitions) moved application by annexing the State Subject
Certificates of the petitioners by alleging that all the State
Subjects are fake and fabricated. The Election Commission of
Azad Jammu & Kashmir under due process of law, sent the
aforesaid applications along with State Subject Certificates to
District Magistrate Muzaffarabad for investigation regarding
genuineness of the State Subject Certificates. Respondent No.
1 (District Magistrate Muzaffarabad) after due process of law,
declared their State Subject Certificates as forged through
impugned order dated 19.11.2020.
I would like to reproduce the relevant portion of
the aforesaid impugned order dated 19.11.2020, which is as
under:-
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The scrutiny of the impugned State Subject
Certificates show that all the certificates have been issued in
different dates with same handwriting and pen, which make
them suspicious. Prima facie, the aforesaid certificates have
not been issued by the competent authority rather the same
have been prepared by the State Subject holders fraudulently.
The District Magistrate Muzaffarabad has to adopt the
process for cancellation of those State Subject Certificates
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2021
13.11.2020 1887-88//
51
28.10.2020
16.09.2009 222/09
2016
/ 07 . 02 . 2017 742 -43 / /
82 2016/6289-6318/(4401/
2005 08
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which have been illegally issued by the authority. In the
instant case, the State Subject Certificates have not been
issued by the concerned authority, hence, the process for
cancellation of the illegal State Subject Certificates is not
required. The authority categorically stated that the aforesaid
certificates have not been issued from his office, therefore,
authenticity and genuineness of the aforesaid documents has
not been proved, hence, needs not for further probe.
Even otherwise, the instant writ petitions have
only been filed to protect the ill-gotten gains. The law does
not allow the petitioners to protect their ill-gotten-gains by
invoking writ jurisdiction. Similar point has been resolved by
the apex Court in a case titled “Custodian of Evacuee Property
& 7 others Vs. Tariq Mahmood Butt” [2002 SCR 38], wherein
it has been observed that:-
“(b) Ill-gotten-gains--- ---An aggrieved person is not permitted to invoke the writ jurisdiction for the perpetuation of injustice or to save his ill-gotten-gains---The respondent after having got the land at his own instance in lieu of the land allotted to him, cannot turn round and say that he was still entitled to receive the compensation of evacuee land which was allotted to him.”
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In the light of what has been stated above, finding
no force in the above titled writ petitions, therefore, the same
stand dismissed with no order as to the costs.
Muzaffarabad; -SD- 12.06.2021 CHIEF JUSTICE
Note:- Judgment is written and duly signed. The office is directed to announce the judgment in presence of the parties or their counsel.
-SD-
CHIEF JUSTICE
Approved for reporting -SD- CHIEF JUSTICE