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//

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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