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Civil Appeal No. 35 of 1987, decided on 8th March, 1988.

---Ss. 42 & 47(2)--Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLVIII, R.4--Azad Jammu and Kashmir Civil Servants Act, 1976, S.12--Appeal against order of Service Tribunal in Supreme Court--Scope--Powers of Service Tribunal and Supreme Court in appeal, co-extensive--Supreme Court being the Appellate Court of Service Tribunal, has no more powers beyond the powers which are being enjoyed "by the Service Tribunal--Supreme Court, therefore, cannot ass an order which cannot be passed by the Service Tribunal.

Khawaja Abdul Qadir v. Abdul Majid P L D 1984 S C (AJ&K) 166 ref.

---S.12(ii)--Record showed that Government servant tried to bribe or offered "Nazrana" to the Prime Minister--Compulsory retirement of said Government servant in public interest on his having completed the period of service qualifying for pension--Government alone being the best Judge, may have variety of reasons which may have impelled it to compulsorily retire the Government servant--Courts cannot sit on judgment over the action of the Government if some reasons appear to exist and if from material disclosed, it does not appear that the action taken was merely in colourable exercise of or an abuse of power.

Lt.-Co. Farzand Ali v. Province of West Pakistan P L D 1970 S C 98 ref.

Mir Muhammad Sharif v. Azad Jammu and Kashmir Government P L D 1986 S C (AJ&K) 87 distinguished.

---Supreme Court itself" is not bound by its own decisions because Court has power to review its judgments pronounced earlier--Law enunciated in such precedents has to be respected provided it applies to a case brought "before the Court--Term "ratio decidendi", explained. --[Words and phrases].

Supreme Court itself is not bound by its own decisions because the Court has powers, -to review any of its judgments pronounced earlier. Besides, law enunciated in such precedents however, is to be respected provided it applies to a case brought before the Court.

Any legal system which uses the precedents is to consider in what way they are relevant to future cases. For this purpose it is generally accepted that this relevancy is to be found in the fact that decision involves some principle of general application. The principles of returning the "ratio decidendi" of a case have been evolved and only such principles a: s can be called the ratio of the decision will operate as precedents.

"Ratio decidendi" is a term often used in opposition to obiter dictum. "Ratio" is defined as reason, the reason or ground of a decision. Lucid defin1tion of "ratio decidendi" "is as reproduced hereunder:--

The reason for the decision given in the earlier case is to be found in the judgment, which becomes a principle of law to be applied in future cases. But there is room for argument in a later case what tithe decisive facts in an earlier case really were, and what the true reason for the decision was: what the judge actually said in his judgment seems not to be regarded as conclusive. There may be more than one ratio decidendi of a case, which must, all be considered.

"Ratio decidendi" is also defined as "the general reasons or principles of a judicial decision, as abstracted from any peculiarities of the case" The term is defined as "the point in a case which determines the judgment". Pram"s Judicial Dictionary, 1964 Edition. The term has further been defined as underlying principle which forms the only authoritative element of precedent. To "the similar effect is the definition that: "ratio decidendi" is the underlying principle of a judicial decision which forms its authoritative element for the future".

At common law not every opinion expressed by a Judge forms a judicial precedent. In of order that an opinion may have the weight of a precedent two things must concur: it must be, in the first place an opinion given by a Judge, and, in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum.

Jowiet Law Dictionary, Concise Law Dictionary by Osborn, 5th Edn. ; Wharton"s Law Lexiction; Ayer, 1972 Edn. ; Prem"s Judicial Dictionary, 1964 Edn.; Stephen on Commentaries of Law of England, Vol. I, p.11 and Prof. Chiprman Grey on Nature and Sources of Law ref.

---Principles of determination of ratio decidendti and principle or which the judgment is based stated.

The question however is how to determine the "ratio decidendi". How is the principle on which the judgment is based to be ascertained.

The traditional theory on this matter has generally been to regard the binding part of a decision as the legal principle formulated by the Court in addition to the matter actually decided, but that would not always do, for in some cases the Court may have decided a case without enunciating any rule at all, and in other instances its formation of principle may be too wide or too narrow.

Therefore, the first step is to determine material facts on which the Judge has based his opinion. Having found the material facts, the "ratio decidendi" would be easy to be discovered--it would be the conclusion reached by the Judges on the basis of the material facts and the exclusion of "immaterial facts, which would determine the "ratio decidendi".

In fact," the prerogative of the Judges being not to make law by formulating and declaring it -- which prerogative pertains to the Legislature -- the Judges can make law only by applying it to facts. Judicial declaration unaccompanied by judicial application is not of binding authority. This reasoning has been used even by subordinate Judges to cut down the application of the too broad principles laid down by the superior Courts.

When the points involved in the case were not directly in issue nor- specifically decided in other cases referred it would be presumed that the points agitated before the Court had not been decided by the referred judgments and so those judgments had no persuasive value for the Court to determine the issue before it. Besides, the "ratio" in those oases may not be binding because despite its too wide a connotation, it could not be applied in its entirety to the case as in those cases most of the points involved in the present case were not before the Court for decision.

Every judgment is applicable to its particular facts proved or assumed to be proved.

Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the "expressions which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found.

A case cannot be quoted as binding for a proposition that may not seem to follow logically from it.

Dr. Goodhart"s Essays on Jurisprudence and the Common Law, 1931 Edn., pp.5-8; Punjab Cooperative Bank Ltd., Amritsar v. Commissioner of Income-tax, Lahore A I R 1940 P C 230 and D. D. Bilimoria Electric Contractor v. Central Bank of India A I R 1943 Nag. 340 ref.

---S. 7-A--Azad Jammu and Kashmir Civil Servants Act, 1976, S.12(ii)--Courts are governed by the codified law and if the Shariat Court alone under law is competent to decide-any question, jurisdiction of Courts stand ousted and despite keen desire of the Courts, they cannot travel beyond it.--[Jurisdiction].

State v. Matloob Hussain Shah 1983 P Cr. L J 745 [SC (AJ&K)1 and Fakir Ali v. Standard Bank Ltd. P I. D 1979 S C (AJ&K) 62 ref.

--S. 31(5)--All the commands and prohibitions contained in the Holy Quran and Sunnah having not been codified in Azad Kashmir, Courts cannot decide the matter in accordance with such commands--Term "codified" meaning.--[Words and phrases- -Muhammadan Law].

The Courts in Azad Kashmir are governed by codified law. There can be no quarrel with the proposition that the Holy Quran and the Sunnah contain the supreme divine law for all Muslims in Azad Kashmir as elsewhere but the whole law contained therein has not so far been enacted as the "law of the country. Since all the commands and prohibitions contained in the Holy Quran and Sunnah have not been codified in Azad Kashmir, Courts cannot decide the matter in accordance with such commands.

The term "codified" means "a systematic collection or digest of the laws of a country, or of those relating to a particular subject". The laws of a country would mean the laws enacted by the Parliament or some other secular authority vested with such powers under the Constitution or other machinery as distinguished from divine laws which cannot be termed as laws of a country unless they are so enacted or codified.

Faqir Ali v. Standard Bank Ltd. PLD 1979 S C (AJ&K) 62; State v. Matloob Hussain Shah 1983 P Cr. L J 745 [SC (AJ&K)] and Eid Wali v. State 1985 P Cr. L J 987 [(SC) AJ&K] ref.

---S. 11(l)--Azad Jammu and Kashmir Shariat Court Ordinance (XXXII of 1982), Preamble--Promulgation of Ordinance of 1982 by President in exercise of powers under S.11(1) of the Constitution--Validity--No Assembly was in existence at the time of promulgation of said Ordinance and the person holding the office of the President and Chief Executive was also functioning as the law-making Authority--Relevant provisions of the Constitution Act providing for placing the Ordinance within four months before the Assembly shall be considered to be dead law--Gap between the expiry of one Ordinance and re-enactment of the other--Effect--Act or Ordinance comes into operation immediately on the expiration of the day preceding its commencement thereby lending continuity to the succeeding Ordinance--Court therefore cannot find fault in the promulgation by re-enactment of the Ordinance in continuity prior to the formation of the Assembly.--[Vireos of legislation].

The President, in exercise of powers conferred upon him by subsection (1) of section 41 of the Interim Constitution Act, promulgated the first Ordinance of the kind on 7-2-1982 which is called the Azad Jammu and Kashmir Shariat Court Ordinance (Ordinance No. XXXII of 1982). Under this Ordinance the Shariat Court in Azad Kashmir for the first time was established. During those days, it may be mentioned here, no Assembly was in existence and the person holding the office of the President and the Chief Executive was also functioning as the law-making authority.

So far as ordinances of this period (prior to 1985) are concerned, there is unbridged gap between the expiry of one Ordinance and re-enactment of the other. An Act or an Ordinance comes into operation immediately on the expiration of the day preceding its commencement thereby lending continuity to the succeeding Ordinance Court cannot, therefore, find fault in the promulgation by re-enactment of the Ordinance in continuity prior to the formation of the Assembly.

Since there Was no law-making elected forum in those days, no fault can be found in the promulgation of the Ordinance by the President. The relevant provisions of the Constitution Act providing for placing the Ordinance within four months before the Assembly shall be considered to be dead law.

Khalid M. Ishaque, Ex-Advocate General, Lahore v. The Hon"ble Chief Justice and the Judges of the High Court of West Pakistan, Lahore P L D 1966 S C 628 and Ch. Muhammad Ashraf v. Chief Secretary Civil Appeal No. M.M.P. of 1979 ref.

---S. 41--Azad Jammu and Kashmir Shariat Court Ordinance (XXXII of 1982), Preamble--Power of President to make. Ordinance--Scope--Word "shall" employed in S.41, not mandatory in nature--Ordinance though will cease to operate at the expiration of four months, but it would not affect the initial validity of the Ordinance and would also not render re-enactment of Ordinance as nugatory and Courts also cannot declare such an Ordinance to be invalid on that score--Judicial review, scope of--There being no bar for the President to re-enact an Ordinance on the subject, it is beyond the province of the Courts to import a word in the Constitution Act to create such an embargo on the powers of the President which the words otherwise do not admit, that being the function of legislature--Principles of Interpretation of Constitution and statutes extensively discussed--[River Wear Commissioner v. Adamson (1877) 2 A C 743 and British Railway Board v. Pickin (1974) 1 All ER 609 dissented from]. ---[Interpretation of statutes--Interpretation of Constitution].

The close reading of section 41 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 would show that an Ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly and such an Ordinance shall be subject to like restrictions as the "power of the Assembly to make laws; and secondly, an Ordinance promulgated is required to be laid before the Assembly within four months and if so is not done it shall automatically stand repealed at the expiration of four months from its, promulgation or before expiration of that period if a resolution disapproving it is passed by the Assembly, upon the passing of that resolution. An Ordinance, however, can be withdrawn at any time by the President. It is, thus, manifest that under section 41 of the Constitution -Act, there is no embargo on the powers of the President to make and promulgate an Ordinance and re-enact the same after four months on the same subject. However, since the Ordinance ceases to be the law of the land after four months, giving continuity to such an Ordinance, which, by fiction, may be construed to be a dead law, by a fresh Ordinance may not be permissible under section 41 of the Constitution Act; but for the re-enactment of the Ordinance no impediment is created. No word appears in section 41 of the Constitution Act creating any such restriction .on the President to re-enact an Ordinance on the subject. And if it is held otherwise, it would amount to import phraseology in section 41 of the Constitution Act which would be nugatory to the intention of law7giver: Such a method is not permissible. Therefore, since under section 41 of the Constitution Act, in the event the Assembly is not in session, the President can validly re-enact an Ordinance, it would not be permissible for any Court. to import words in the Constitution to create any artificial embargo on the powers of the President except the one stipulated under section 41 of the Constitution Act. If the Court does so it may be interpreted as an amendment in the Constitution Act which is beyond the province of the Court.

The word "shall" employed in section 41 is not mandatory in nature. It is directory in the context it is used. It is used in the context of placing the Ordinance before the Assembly for its approval or making it an Act of the Assembly. If it is not placed before the Assembly the Ordinance will cease to have legal effect after four months. The word "shall" is used in this context only thus, the word "shall" in the context it is used is not mandatory it is directory in nature. It is the will of the Government to place the Ordinance before the Assembly within four months or allow it to be repealed by operation of -law.

Notwithstanding the word "shall" used in section 41 of the Constitution Act, the requirement of laying the Ordinance before the Assembly is directory. The Ordinance no doubt will cease to operate at the expiration of four months, but it would not affect the initial validity of the Ordinance and would also not render re-enactment of the Ordinance as nugatory.

In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interest, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules.

Court has no power to declare such an Ordinance to be invalid on that score, if the Constitution otherwise allows promulgation of such Ordinances. Such Ordinances may adversely affect the spirit of democracy, but when the supreme law of the country allows it, there remains no alternative for the Courts but to respect and accent it In the way the Constitution allows it. Things with the injurious consequences of the Ordinance cannot be the criteria to ignore it, because the Courts are to interpret the laws of the country as they are and not to legislate .on considerations of jurisprudence and policy.

In fact, the prerogative of the Judges is not to make law. This prerogative only pertains "to, the legislative forum. The Judges can make law only by applying it to facts. Judicial declaration unaccompanied by judicial application is not of binding authority in most of the cases."

The provisions of section 41 of the Constitution Act, clothe the President with the powers of make and re-enact an Ordinance on the same subject in continuity, spreading over even years and there is no express or implied prohibition in the Constitution Act on the powers of the President to do so. This constitutional power of the President, of course, may not look desirable in a democratic set-up but the Constitution, being the supreme law, it is to be respected, despite the fact that its provisions may not seem to fit in within the framework of a democratic set-up. Any interpretation which may destroy the spirit of any of the constitutional provisions of the Constitution Act is not permissible. It is beyond the competence of the Supreme Court to interpret the Constitution Act in a way which may reasonably be construed as an addition or amendment in the Constitution Act.

In view of the wording of section 41, of the Constitution Act, even where the session of the Legislative Assembly is prorogued deliberately with a view to enabling the President to promulgate the Ordinance, it is a valid act of the President and this exercise of the powers of the President cannot be called fraudulent or mala fide because under the Constitution Act it is within the powers of the President to prorogue the Legislature at any time he Dl-eases. There is, therefore, nothing wrong in the President"s proroguing the Assembly with a view to enable him to issue an Ordinance under section 91 of the Constitution Act. The" reason seems to be this: The Legislature, which is democratically constituted is, at times, slow to move in the matter of legislation, having regard to the rules of procedure laid down in that behalf, and if urgent action is necessary at any rate, the President; after having the advice of the Prime Minister, if he has reasons to believe that immediate action is necessary, may resort to the power of issuing an Ordinance under section 41 of the Constitution Act; rather than approach the Legislature for the necessary legislation.

The President can not only re-enact an Ordinance but can even prorogue the sessions of the Assembly for the, purpose.

An Ordinance even -if injurious cannot be declared as invalid if it is within the constitutional framework. The Courts are not to interpret laws on considerations of jurisprudence and policy, if Courts interpret a law or a provision of Constitution on consideration of jurisprudence and policy, it may be considered as an interference with the legislative competence of the Assembly and Ordinance making power of the President guaranteed under the Constitution Act; and if Courts do so they may rightly be blamed of disturbing the functional boundaries of one of the important organs of the" State.

When a Court, which is a creation of the Constitution itself, examines the vires of an Act or any of the constitutional provisions its powers are limited to declare the legislative instrument as void and inoperative, not because the judicial power is supreme in degree or dignity to the legislative power but because it enforces the Constitution as paramount law.

The scope of judicial review is confined to the enforcement of Constitution as the supreme law and even if the constitutional practices or "provisions are improper, the Courts are debarred to correct them. It is only for the Legislature to look into them. The proceedings of the Courts are judicial and not autocratic. Courts are to administer law and not to make law. One organ of the State is not expected to encroach upon the legitimate field of the other. They have their defined boundaries and it is expected of them not "to make inroads in the fields of others but have due regard for each other. This would create harmonising atmosphere in their respective working.

Due weight, to a word used in" s Constitution, must be given. It is not duty of the Courts to fill in any lacuna in the Constitution or in any law to convey a sense different from the one conveyed implicitly or by, necessary implication by the words used therein. It is also not for the Courts to speculate as to" the intention" of the Legislature, if that intention is clear by the language used. When the words admit of one meaning a Court is not at liberty to speculate on the intention of the Legislature and to construe them according to its own notions of what ought to-have been enacted. Nothing could be more dangerous than. to make such consideration the grounds for construing an enactment that is unambiguous in itself to depart from the meaning on account of such view is, in truth, not to construe the Act but to alter it. This is beyond the, province of the Court. The business of the Court is not to improve the statute or Constitution; it is to expound it. The question for the Courts is not what the Legislature meant but what its language means, i.e., What the Act has said that meant. To give a construction contrary to or different from that which the words import or can possibly import is not to interpret law; but to make it, and Judges are to remember that their office is jus dicere, not jus dare. The Court of law is not justified in going beyond the plain words of the Act to speculate as to what Legislature intended to enact. When the words used by the Legislature are clear, it is not permissible for the Courts to depart from the ordinary and plain meaning of the words used on the mere supposition that the intention of the Legislature was otherwise than indicated by the plain and ordinary words used. However, if the words are ambiguous then the reports of the debates leading up to the passing of it can be looked into. View to the effect that the reports of the debates leading up to the passing of an Act cannot at all be looked into is correct only when the words area unambiguous and one can get the intention of the legislators and not otherwise. Therefore, the Courts had no power to examine the proceedings of the Parliament in order to determine whether the passing of an Act had been obtained by means of any irregularity or, fraud.. One cannot expect that sanctity to the words used in the Constitution or Act in the eastern countries to which they are susceptible in England or America, where democracy and the parliamentary system has deep roots spreading over centuries; it would require, in eastern countries, time to attain those heights.

The basic principle of interpretation of law is to know the intention of the law-makers. The Court has to find out the intention of Legislature. In doing this one must, of course, start with the words used in the statutes but not end with them as some people in past seem to think. The principles of law laid down by the Judges in the 19th century--however suited to social conditions of that time--are not suited to the needs, social necessities and social opinions of the 20th century. They should, if possible, of course without violence to the clear language used, be moulded and shaped to meet the needs and opinions of today because the interpretation made in the 19th centrury may do injustice.

Whenever a statute comes up for consideration, one should be alive to the facts that it is not within human power"s to foresee the manifold sets of fact which may arise, and, even if it were, it is not possible "to provide for them in terms free from all ambiguities. The English language is not an instrument of mathematical precision; its literature would be much the poorer if it were. This is where the draftsmen of Acts "or Legislatures have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the "language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some. or other ambiguity. It would certainly save the Judge"s trouble if Acts of Parliament were drafted with perfect clarity,

The words of the Constitution Act under section 41 are absolutely clear and do not suffer from any ambiguity to send for the proceedings of the Assembly to dig out the intention of the legislators.

If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature.

The rule of the construction is to intend the Legislature to have meant what they have actually expressed".

It matters not, in such a case, what the consequent "may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is, that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient.

However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy.

Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the, intention to Legislature.

Intention of the Legislature" is a common fiat very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity what the Legislature intended to be done or not to be done can only be ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication. After expounding the enactment .it only remains to enforce it, notwithstanding that it may be very generally received with opinion that it "does not produce the effect which the Legislature intended", or "might with advantage be modified".

Even though a Court is satisfied that the Legislature did not contemplate the consequences of an enactment, a Court is bound to give effect to its clear language. The language, of the Legislature is to be interpreted according to the recognized cannons of construction, and, Court must yield to it, even if it was satisfied that it was not in the contemplation of the Legislature.

But the Judges are not responsible for Acts" passed by the legislature: They ought to remember that their office is jus dicere and "not jus dare, to interpret the law and not to make law or give law. It is their duty to abide by the words of the statute without attempting to reform it according to the supposed intention of the legislature, or exclude cases which fall within the express meaning of the rules in order to make the law reasonable.

The Courts always showed reluctance to import any other meaning to a word used in a satute or make any addition in a statute or constitutional instrument to exchange explicit or by necessary implication the intention of the Legislature. Therefore, it is not permissible for Courts to add a word to the Constitution Act to get a meaning different from the one which can be gathered from the clear phraseology used. On the question as to whether the extraordinary power of the President to promulgate Ordinances can be controlled by the Courts in order to prevent it from being so used as to defeat parliamentary democracy, which was the system introduced in Azad Kashmir by the Constitution, the Supreme Court observed that it is hoped that this extraordinary power would not be used to serve political ends and the President shall himself resort to self-restraint. But Courts cannot place any restriction on such powers of the President. Supreme Court was alive to the fact that this principle of self-restraint varies from person to person. All Presidents do not think alike as all Ministers and Prime Ministers do not have identical ideology in the performance of their official functions. It would, therefore, look better if some safeguards and checks are created on the powers of the President to promulgate the Ordinances and also towards powers of the Prime Minister to tender advice for the purpose. These checks and cross-checks for the President and the Prime Minister were apt to create healthy atmosphere paving a way for an examplary democratic set-up in Azad Kashmir.

Under section 41 of the Constitution Act there is no bar for the President to re-enact an Ordinance on the subject. It is beyond the province of he Courts to import a word in the Constitution Act to create such an embargo on the powers of the President which the words otherwise do not admit. This is obviously the function of the legislators. If Courts do so, it may reasonably be interpreted as an amendment in the Constitution Act which is beyond the competence of the Courts.

River Wear Commissioner v. Adamson (1987) 2 A C 7 43 and British Railway Board v. Pickin (1974) 1 All E R 609, dissented from.

Tirathmal and others v. The State P L D 1959 (W.P.) Kar. 594; D.K. Krishnan v. Secretary, Regional Transport Authority AIR 1956 Andh. 129; K. Veerabhadrayya A I R 1950 Mad. 243; Maxwell on Interpretation of Statutes, 6th & 7th Edn. p.10; Chief Secretary/ Referring Authority v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95; Craies on Statute Law, 7th Edn., Chap.5th, p.65; Daily Gazette Press Ltd. v. .Karachi Municipality A I R 1930 Sind 287; Gobind Das and others v. Rup Kishore and others AIR 1924 Lah. 65; Sir Ganga Ram Trust Society v. Mehta Sunder Lai and another A I R 1940 Lah. 27 and Sheikh Muhammad Abdul Razzak and another v. Mt. Srimati Parvati Devi and another AIR 1942 All. 394 ref.

---Ss.41, 7 & 12--Azad Jammu and Kashmir Shariat Court Ordinance (XXXII of 1982)--Power of President to make or re-enact Ordinance and to act on advice of the Prime Minister/ Government--Scope--Vines of such Ordinance- -Judicial review, scope and principles of--President in the performance of his functions, acts in accordance with the advice of "the Prime Minister--Ordinance promulgated by the President, cannot be said to have been promulgated by a single person according to his wishes as such Ordinance has the backing of some of the elected members of the Assembly--Such Ordinance therefore, cannot be construed as a purely executive act by the PresidentCourts cannot set aside such an Ordinance except by negativing the authority of some of the members of Legislative Assembly specially when such Ordinance was protected by the Constitution.--[ Vires of legislation].

The President in the performance of his functions; prima facie, acts in accordance with the advice of the Prime Minister, it would not be said that the Ordinance "promulgated by the President under section. 41 of the Constitution Act is made by a single person according to his whims, Such an Ordinance, as would be seen, has the backing of some of the elected members of the Assembly.

Every time prior to the re-enactment of the Ordinance the Prime Minister moved the President to do" so. The Prime Minister always submitted the file with the observation that since the Assembly was not in session, the promulgation of Ordinance was necessary.

The President in -his wisdom, treating it to be an emergent situation continued issuing and re-enacting the required Ordinance.

Even some of the Assembly members were made alive to the promulgation of the Ordinance but they impliedly consented in its promulgation and never moved the Assembly to disapprove it or make it an Act of the Assembly. This at least shows an implied approval of the Ordinance by some of the members of Assembly. Their number in the Committee and Cabinet comes to twelve.

In the absence of an express provision to the contrary in the Act, the President, prima facie, is bound by the advice of the Prime Minister in the performance of his functions. Section 12(1) of the Constitution Act conveys clear sense to the effect that the executive authority of Azad Jammu and Kashmir is to be exercised in the name of the President by the Government consisting of the Prime Minister and the Ministers which shall act through the Prime Minister who shall be the Chief Executive of the State. Definition of the word "Government" under section 12 of the Constitution Act unmistakably tells that the Government of Azad Jammu and Kashmir means the Prime Minister arid the Ministers of the realm. The Prime Minister, however, has been given the power to act, as Government in his capacity as Chief Executive. In the performance of his functions, i.e., the functions of the Government, the Prime Minister is at liberty to act within the meaning of section 12(2) of the Constitution Act directly or through Ministers. The Constitution Act thus, suggests clearly that it is entirely within the province of the Prime Minister either to act directly or through the Ministers in the exercise of his functions. Both the methods are duly recognised under the Constitution Act. The Prime Minister and Ministers, however, are collectively responsible to the Assembly.

The purpose of sections 7 and 12 of the Constitution Act is two-fold: one being that an Ordinance is to be made by the President on the advice of the Prime Minister and secondly; the Prime Minister alone is also competent to function as Government even in presence of his cabinet and no valid argument can be advanced that an act of the Prime Minister without the consent of the Ministers is invalid. This power to the Prime Minister, given by the Constitution, cannot be interfered with by any of the subordinate legislation or the Courts.

The advice given by the Prime Minister to the President under section 7 of the Constitution Act, impliedly carries with it the weight of at least seven members of his cabinet who are also members of the Assembly. Promulgation of he Ordinance, therefore, cannot be construed as a purely executive act. It has some semblance of an act of the Assembly. The Courts of law, cannot easily set aside such an Ordinance except by negativing the authority of some" of the members of the Legislative Assembly, especially when such an Ordinance is protected by the Constitution Act. If the Prime Minister or his Cabinet acts mala fide or the President uses his powers in making Ordinance to meet some political ends, the Constitution Act has provided political safeguards against this. If such an Ordinance is brought to the notice of the members of the Assembly and they do not wish it to be continued and think that the President should not have re-enacted the Ordinance, and should have brought it before the Assembly in the form of a bill or Ordinance, or the Prime Minister should not have given advice to the President to enact or re-enact the Ordinance, they can vote out the President and the Prime Minister responsible for the promulgation of the Ordinance but Courts are not competent to strike down such an Ordinance on the considerations not envisaged in the Constitution Act.

If the Courts of law were to interfere in such political matters, they would be arraying themselves as a party into unseemingly conflicts with political authority in the country". The Courts are to enforce the law of the country and not to legislate on considerations of jurisprudence and policy. Here it is to be noticed that in its scope the Ordinances are not made by the President in his wisdom alone; they are made by the President on the advice of the Prime Minister.

This consideration alone, as a rule of policy, would restrain Courts from enlarging their jurisdiction to such domains. The principle on which the Courts are debarred from sitting in judgment on the Legislature, therefore, is not that it is not possible or it is extremely difficult to prove that the members had not acted bona fide, or that fraud was played upon them, or that they had made a mistake; but because the Courts being themselves the creation of law must yield to the laws of" the country irrespective of the considerations of jurisprudence or of policy. Therefore, intra vires or ultra vires of an Act or an Ordinance depends simply on examining the competence of the legislative authority which enacts them and by no other criterion.

The President is not bound to expound reasons for promulgating an Ordinance or, to prove them affirmatively in a Court of law. He is the sole Judge of the question whether circumstances exist which call for immediate legislation by Ordinance. The existence of such necessity is not a justifiable matter which the Courts could be called upon to determine by applying an objective test. Even if the President states the reasons which satisfied him as to the necessity of immediate action, the Courts cannot question the bona fides of such action.

Section 7 of the Constitution Act is more or less pari materia with Article 74 of the Constitution of India and Article 48 of the Pakistan Constitution. In section 7 from the wording "subject to an express provision to the contrary in this Act, in performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister" one may get the impression that the function of the Prime Minister is only advisory and it is left to the President to accept the advice or ignore the same and, thus, the decisions on all matters will be of the President himself. On the other hand it may also be said that the President is not bound by the advice of the Prime Minister because, the word, "shall" employed in section 7 of the Constitution Act is directory and not mandatory in nature. Since in the instant case, there had always been the advice of the Prime Minister for re-enactment and promulgation of the Ordinance with regard to the Shariat Court and the advice throughout was honoured and respected by the President, the question whether the President is bound by the advice of the Prime Minister in the performance of his functions hardly arises and to decide this issue would be an obiter. However, in section 7(2) of the Constitution Act, the phraseology to the effect "the question whether any, and if so what, advice was tendered to the President by the Prime Minister shall not be enquired into by any Court" would need thought and consideration.

Section 12(3) of the Constitution Act enacts that the Prime Minister and the Ministers shall be collectively responsible to the Assembly, while on the other hand there is no provision in the Constitution Act which makes the President responsible to the Assembly for the acts of the Government. It may, therefore, look anomalous to hold that the Prime Minister, who only gives advice while the final decision is taken by the President, is answerable for the acts and policy of the Government. So, viewing the matter from this aspect, the advice by the Prime Minister may be binding upon the President.

Basu"s Commentary on the Constitution of India, Third Edn., p. 715 and Ch. Qaseem-ud-Din v. The Province of West Pakistan PLD 1959 Lah. 76 ref.

---Intra vires or ultra vires of an Act or an Ordinance depends simply on examining the competence of the legislative authority which enacts them and by no other criterion.

---Ss.41, 42, 7, 12 & 17--Azad Jammu and Kashmir Shariat Court Act (XXXII of 1982), Premable & Ss.6, 9 & 10--Azad Jammu and Kashmir Civil servants Act, 1976, S.12(1)--Compulsory retirement of a Government servant on his having completed the period of service qualifying for pension-- Repugnancy to injunctions of Islam--All the Ordinances with regard to the constitution of the Shariat Court promulgated by the President being valid, Shariat Court established under such Ordinance/Ordinances and its continuity by virtue of the Ordinances later on enacted is also valid--Supreme Court or the Service Tribunal, in view of the provisions of Ss.6, 9 & 10 of the Azad Jammu and Kashmir Shariat Court Ordinance, 1982 is not competent to declare a law as to be ultra vires of Quranic injunctions as after the establishment of Shariat Court such power has been validly taken away from the Superior Courts and given to the Shariat Court.

After establishment of the Shariat Court the power to look into the vires of an Act or an enactment if it is violative of injunctions of Quran and Sunnah has been validly taken away from the superior Courts and given to the Shariat. Court.

The powers under the Constitution Act are to be exercised "subject to the Constitution" and since according to the provisions of the Constitution itself the Shariat Court can be brought into existence by virtue of law, the Shariat Court Ordinance can, therefore, validly take away the jurisdiction of the Supreme Court and the High Court on those matters which are not specifically covered by the Constitution Act.

The Shariat Court Ordinance is an Ordinance which has been preserved by section 41 of the Constitution Act. Therefore, it enjoys the status of an Act of the Assembly. Natually such an Act can competently take away the jurisdiction of the High Court and even that of the Supreme Court by reason of section 47 of the Constitution Act which clearly provides that no Court shall have any jurisdiction that is not, conferred upon it by the Constitution or under law. Besides; under section 42(1), the Supreme Court shall have the power given to it under the Constitution or law. The Ordinance is a valid piece of legislation by a competent Legislature and if it has taken away the jurisdiction of the High Court and the Supreme Court to call in question a particular law and allows its scrutiny only by the Shariat Court, the Supreme Court cannot question it unless it comes before it for consideration by way of an appeal or reference. The Ordinance takes away the jurisdiction of the High Court and the Supreme Court not only to look into the validity of an order made or direction issued thereunder, but even provisions of the said Ordinance cannot be questioned before the High "Court or the Supreme Court.

The Supreme Court and the Service Tribunal have no jurisdiction to declare a law as to be violative of the Quranic Injunctions.

Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 and Muhammad Khan v. The Border Allotment Committee PLD 1965 SC 623 ref.

---S.12(ii)--Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.7--Azad Jammu and Kashmir Government Rules of Business, R.5 8, Sched. III, R.2-Prime Minister is "competent to pass an order of retirement under S.12(2) of Civil Servants Act, 1976 of a Government servant who held a Grade-20 post.

The Prime Minister alone in his capacity as the Government within the meaning of section 7 of the Constitution Act, was competent to pass an order of retirement under section 12(ii) of the Civil Servants Act. Apart from it, under section 5 of the Rules of Business (Schedule III, rule 2) which holds the field and which reads "no order shall be issued without the approval of the Prime Minister in cases enumerated in Schedule III", would also show that the Prime Minister alone is competent "to pass final order of removal of an employee holding a post in Grade-20. Therefore, the order of retirement of appellant who held a Grade-20 post under section 12(ii) of the Civil Servants Act was competently made by the Prime Minister.

Fazalul Qadir Chaudhry"s Case PLD 1963 SC 486 and Begum Shamsun Nihar"s case PLD 1965 SC 120 distinguished.

---S.12(ii)--Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974). Ss.41, 7 & 12--Order of retirement of a Government servant in public interest indicating that it had been issued by the President in exercise of his powers under S.12 (ii) of Civil Servants Act, 1976, would not make the order a bad one--Such a defect being a defect in the form and not the substance would hardly make any difference--Non-compliance of provisions of Constitution Act--Effect.

The provisions of section 12 of the Constitution Act, signify that the executive authority of the Azad Jammu and Kashmir shall vest in the government, but it shall be exercised by the Prime Minister in the name of the President. Therefore, no valid argument can be advanced that, the order made in the name of the President can, in any way, be construed to be an order passed -by -the President. Any defect in the form of the order would hardly make any difference.

It would only be termed to be an irregularity having no adverse effect on the substance of the order. Besides, in the Constitution Act no consequence for non-compliance is stipulated. Therefore, non-compliance would not affect the order adversely.

The general principle on which Courts have to decide such cases is: where a statute requires" that something shall be done in a particular manner without expressly declaring what shall be the consequences of non-compliance, the word "shall" in such cases is to be interpreted as directory in nature. The question whether the provision is of affirmative or negative import is of substantial bearing. If the provision is of affirmative nature, it is a weaker case for reading the provision as mandatory.

Section 12 of the Constitution Act does not prescribe any manner in which orders of the Government in the name of the President are to be made. All that it says is that the executive authority of the Azad Jammu and Kashmir shall be exercised in the name of the President by the Government. Therefore, if an order is issued under section 12 of the Constitution Act indicating that the President has done so in exercise of the powers conferred on him, it would only mean that the wrong phraseology is used, which would not destroy the meaning of section 12 of the Constitution Act. The simple reason is that under the Constitution Act the President has very little executive authority in Azad Jammu and Kashmir; the authority is exercised by the Government and orders are only issued in the name of the President.

The executive authority of Azad Jammu and Kashmir is exercised by the Government in the name of the President. It means that irrespective of the fact that the executive authority is exercised by the Government, it shall appear to have been exercised by the President. Incorrect compliance of section 12 of the Constitution Act would not, therefore, invalidate the act of the Government.

J. K. Gas Plant Manufacturing Co. v. Emperor A I R 1947 F C 38 and 1939. A C 277 ref.

---S.12(ii)--Retirement of a Government servant under S.12(ii) is always from his service and not the post he was holding at relevant time.

The order under section 12(ii) retires the Government servant from the service in the public interest. Section 12(ii) stipulates retirement from service. It does not authorise retirement of an employee from any specific assignment. Obviously, the provisions of Civil Servants Act would -apply to the substantive service of the Government servant only and it is not possible to accept the argument that since the word "Secretary" has not been used in the order, the appellant has not been retired from the post of the Secretary and still retains the same. Benefit of 30 years" service for the purposes of pension given to the Government servant clearly shows that the he was retired from his substantive post of Secretary because the post he was holding at relevant time carries no pension at all. The Government order, thus, is issued in strict conformity with section 12(ii) of the Civil Servants Act which only authorises the competent authority to retire an employee from his "Service" and not from the post such an employee is holding at the relevant time.

Thus, retirement under the provisions of section 12(ii) of the Civil Servants Act is always from his service and not from a post. There is no concept of retirement from a particular post in the framework of service Rules. All that is required in such cases is that the person is retired from the service of whatever kind he holds. The retirement of the Government servant as Chairman A.K.M.I.D.C/Managing Director A.K.L.A.S.C., by way of the order, only showed the last appointment the Government servant held at the time of his retirement.

The argument that the Government servant had not been retired from the post of Secretary, if accepted, would disentitle him to lodge an appeal before the Service Tribunal; and his appeal may be dismissed on this short ground. An appeal before the Service Tribunal is only competent when the terms and conditions of Civil Servants Act are violated. The Service Tribunal has no authority to pass declaratory decrees and entertain appeals to the effect that a person still holds a certain post. If he feels that he is still in service as Secretary he is at liberty, to file a declaratory suit in a competent Court or invoke the extra ordinary writ jurisdiction of the High Court to get his grievance redressed.

Retirement of the Government servant from the service and at the same time giving him the benefit of 30 years" service for purpose of pension shows sufficiently that he was retired from his substantive post of Secretary. His grievance that the Service Tribunal should declare that he continues to hold the post of Secretary to Government, therefore, is unfounded. Even otherwise, the Service Tribunal was and is incompetent to give such a declaration.

---S.12(ii)--Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.49--Compulsory retirement of a Government servant in public interest on his having completed the period of service qualifying for pension--Prior notice to the Government servant is ordinarily not necessary, competent authority can dispense with it if circumstances warrant such a dispensation--Duty of Court.

Since issuance of notice under section 12(ii) of the Civil Servants Act is ordinarily not necessary, competent authority can dispense with it if circumstances warrant such a dispensation. But every case varies in its nature and quality. Notice is not necessary in every case. But if in a given case circumstances warrant issuance of a notice prior to taking action, notice is to be issued. It is, therefore, for the Court to see as to whether in the circumstances notice was necessary and if so is not done, how would it affect the order. It would be, however, unfair to give blank cheque to the Government to use its powers for the purposes not stipulated under section 12(ii) of the Civil Servants Act. Courts cannot overlook such an exercise by the rulers especially in developing countries like Pakistan and Azad Kashamir. Arbitrary powers given to the Government, therefore, would frustrate the very spirit of the Civil Servants Act, 1976. It is not permissible to interpret the law in a way as to give the Government unfettered powers to remove any Government servant after the service of 25 years irrespective, of the consideration of public interest.

No doubt, section 12(ii) of the Civil Servants Act does not visualise any notice prior to the retirement order, would it be, therefore, said that notice is not necessary even if circumstances resulting in his retirement would cast a stigma on his character is also an important question to be considered.

There may be cases in which prior notice to a person affected is necessary. This would, however, depend on the circumstances of each case.

The precise point which requires consideration, where no notice is provided, is to see as to whether the order is within the powers of an authority and if so whether in the circumstances, a notice was necessary or not. These conditions or condition may be implied in he discretion granted and non-compliance with such condition may invalidate an act as the breach of an express condition.

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