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Justice Syed Manzoor Hussain Gillani v/s Government of Pakistan

BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN


(Original Constitutional Jurisdiction)Const. Petition No. /2009
JusticeSyed Manzoor Hussain Gillani s/o Syed Hassan Shah Gillani, r/o 1-Shaukat Line,
opposite Neelam Stadium, Muzaffarabad, Azad Kashmir. Petitioner
Versus

1. Government of Pakistan through Principal Secretary to the Prime Minister, Prime


Minister Secretariat, Islamabad 1.Prime Minister of Pakistan as Chairman Azad
Jammu & Kashmir Council through Secretary In charge, Azad Jammu & Kashmir
Council, Secretariat, Islamabad2 1. Ministry of Law, Justice and Human Rights,
Government of Pakistan, Islamabad through its Secretary 1. Ministry for Kashmir
Affairs & Northern Areas, Islamabad through its Secretary 1. The Azad Jammu &
Kashmir Council, Secretariat II, Islamabad through its Secretary 1. Government of
Azad Jammu & Kashmir, the Secretariat, Muzaffarabad, through its Chief Secretary 1.
Department of Law, Justice, Parliamentary Affairs and Human Rights Azad Jammu &
Kashmir through its Secretary 1. The Honable Mr. Justice Muhammad Riaz Akhtar
Chaudhry, Chief Justice Azad Jammu & Kashmir Supreme Court, through Registrar
Supreme Court
Respondents

CONSTITUTIONAL PETITION UNDER ARTICLE 184(3) OF THE CONSTITUTION


OF THE ISLAMIC
REPUBLIC OF PAKISTAN, 1973 READ WITH ORDER XXV OF THE SUPREME
COURT RULES, 1980

Respectfully
Sheweth:-
1. The petitioner is a law abiding citizen of Pakistan and the senior most
judge of the Honable Supreme Court Azad Jammu & Kashmir having worked as
such since August 2004. The petitioner has had an unblemished record of service
not only as judge of the Supreme Court but as judge of the Azad Jammu &
Kashmir High Court (1991-2001), as its Chief Justice (2001-2004) besides having
held the offices of the Advocate General & Chief Election Commissioner, AJK,
and the Vice Chancellor of the AJK University. He has immensely contributed to
the development of law through judicial pronouncements of constitutional
importance and wrote multiple articles published in the well respected journals
of Pakistan besides being the author of three books on constitutional law; 2. The
Government of Pakistan has assumed the responsibilities of the Azad Jammu
and Kashmir territory, called local authority within the spirit of various U.N.
Security Council and UNCIP Resolutions and its administration is regulated for
the time being under the Azad Jammu and Kashmir Interim Constitution Act,
1974, (hereinafter referred to as the Interim Constitution Act, which is given by
the Government of
Pakistan for the better Government and administration. The relevant part of the
preamble of the Interim Constitution Act states that: AND WHEREAS, it is
necessary to provide for the better Government and administration of Azad
Jammu and Kashmir until such time as the status of Jammu and Kashmir is
determined as aforesaid and for that purpose to repeal and re-enact the Azad
Jammu and Kashmir
Government Act, 1970, with certain modifications; AND WHEREAS, in the
discharge of its responsibilities under the UNCIP Resolution, the Government of
Pakistan has approved of the proposed repeal and re-enactment of the said Azad
Jammu and Kashmir Government Act, 1970, and authorized the President of
Azad Jammu and Kashmir to introduce the present Bill in the Legislative
Assembly of Azad Jammu and Kashmir for consideration and passage.
(Underlining is added for the sake of emphasis) 1. The Interim Constitution Act
visualizes trichotomy of legislative and executive powers distributed between the
Government of Pakistan directly, as well as indirectly through the Azad Jammu
and Kashmir Council, which is headed by the Prime Minister of Pakistan as its
Chairman while the powers of the local governance vest in the Azad Jammu and
Kashmir Government. The Prime Minister of Pakistan is defined in sub-section
(14) of Section 21 of the Interim Constitution Act as
follows:-(14) The word The Prime Minister of Pakistan wherever occurring in
this
section shall be deemed to include the person for the time being exercising the
powers and performing the functions of the Chief Executive of Pakistan. The
powers vested in the Government of Pakistan and the Azad Jammu and
Kashmir Council under different sections and schedule III of the Interim
Constitution Act are excluded from the purview of Azad Jammu and Kashmir
Assembly and Government under sections 19, 21(7) and 31(2) of the Interim
Constitution Act. Besides above, the Government of Pakistan has an overriding
authority in relation to AJK under Section 56 of the Interim Constitution Act
which is as follows:- 56. Act not to derogate from responsibilities of Pakistan.
Nothing in this Act shall derogate from the responsibilities of the Government of
Pakistan in relation to the matters specified in sub-section (3) of Section 31 or
prevent the Government of Pakistan from taking such action as it may consider
necessary or expedient for the effective discharge of those responsibilities
2. The Government of Pakistan has been making and dismissing the
Governments of AJK under the authority of this provision.1. The executive
authority of the Council is exercised by its Chairman, the Prime Minister of
Pakistan (or the Chief Executive of Pakistan as the case may be), who performs
his functions from Islamabad as a persona designate either directly or through
the Secretariat of the Council
located in Islamabad. Section 21(7) of the Interim Constitution Act is reproduced
as follows: 21(7)The executive authority of the Council shall extend to all matters
with respect to which the Council has power to make laws and shall be exercised
in the name of the Council by the Chairman who may act either directly or
through the Secretariat of the Council of which a Federal Minister nominated by
the Chairman from amongst the members of the Council and not more than
three advisors appointed by the Chairman shall be in charge. [underlining is
added for the sake of emphasis]

1. That the Azad Jammu and Kashmir is assimilated in the mainstream of


Pakistan for all practical purposes, including administration, economic and
social developments etc. The Government of Pakistan has issued two successive
notifications to this effect that Azad Jammu and Kashmir shall for all practical
purposes be treated like any other province of Pakistan. These notifications have
been relied and acted upon in the cases reported as [PLJ 1999 AJK 1] and [PLD
2006 Law. 465]. Besides these notifications, AJK is a territory of Pakistan in terms
of Article 1(2)(d) of the Constitution of Pakistan and therefore the Government of
Pakistan is responsible for the overall governance of its
territories;???????????
1. That the Interim Constitution Act has, at least to the extent of Azad Jammu
and Kashmir, settled the relationship with Pakistan, within the spirit of Article
257 of the Constitution of Pakistan 1973, pending final solution of the Kashmir
imbroglio, and to give effect to this relationship, a special clause (2) is added in
section 4(4)(7) of the Interim Constitution Act, overriding the fundamental right
of freedom
of association as: No person or political party in Azad Jammu and Kashmir shall
be permitted to propagate against or take part in activities prejudicial or
detrimental to the ideology of the State’s accession to Pakistan. This clause has
received the judicial assent also in the case Aftab Hussain
vs. Azad Jammu and Kashmir Legislative Assembly [reported as PLJ 1991 AJK
60].

1. That the Judges of the Supreme Court and High Court of Azad Jammu and
Kashmir are appointed by the President of Azad Jammu and Kashmir on the
binding advice of the Prime Minister of Pakistan designated as Chairman of the
Azad Jammu and Kashmir Council, in accordance with the process prescribed
by sections 42 and 43 of the Interim Constitution Act respectively which are
similar to corresponding provisions of Constitution of Pakistan. 1. That the
petitioner was appointed as Judge of Azad Jammu and Kashmir High Court on
5thof May 1991 and its Chief Justice on May 4, 2001 and as one of the three
judges of the Supreme Court, AJK in Aug 2004 on the advice of the Prime
Minister of Pakistan, as Chairman of the AJK Council. 1. That after conducting
elections for AJK Assembly in June 2006 as Chief Election Commissioner of
AJK, the incumbent Chief Justice Supreme Court Justice Muhammad Riaz
Akhtar Chaudhry (who was the Chief Justice of the AJK High Court at that
time), was appointed as Judge in the Supreme Court of AJK on 26.9.2006 against
a vacant position in the Supreme Court.
1. That the incumbent Chief Justice, who was six years junior in High Court and two
years in the Supreme Court AJK as against the petitioner, was directed to be
appointed as Chief Justice of the AJK Supreme Court on the mandatory advice of
Prime Minister of Pakistan issued on 20.10.2006 and notified by the AJK
Government on 21.10.2006 i.e. just within twenty four days of his appointment as
Judge of the AJK Supreme Court clearly ignoring the seniority position of the
petitioner as settled by
the constitution, past conventions and the principles as laid down by the superior
Courts of Pakistan. (Copies of advice and Notification are attached herewith). 11.
That the Prime Minister of Pakistan had no legal or constitutional justification to
advice the appointment of any person other than the petitioner, being the senior most
Judge having an unblemished record of service, as the Chief Justice of AJK Supreme
Court.

1. That as a result of illegal and unconstitutional appointment of the incumbent


Chief Justice, the petitioner went on long leave in protest. A number of
representations were made by the petitioner to the Prime
Minister of Pakistan but the same have not received any heed or attention. That a
constitutional petition was filed by the practicing advocates of AJK Bar Councils
before the High Court AJK challenging the illegal and unconstitutional appointment
of the incumbent Chief Justice Supreme Court, but to the utter surprise and dismay
of all, contempt proceedings through Registrar Supreme Court AJK were initiated
against the Registrar High Court AJK for having entertained such constitutional
petition. The original file/record was summoned and has thereafter been kept in
custody by the Registrar office of the Supreme Court (acting
under instructions of the incumbent Chief justice AJK Supreme Court) and to date
after a lapse of more than two years no action had ever been taken on the same,
clearly showing the influence and high
handedness of the incumbent Chief Justice on the judicial system of AJK. That after
the induction of the new democratic Government in Pakistan, a summary was
submitted to the Prime Minister of Pakistan by the
Secretary Kashmir affairs and Northern Division in charge AJK Council on
25.6.2008, through Secretary Ministry of Law & Justice, Pakistan, for revoking the
advice issued for appointment of junior Judge and for a fresh advice for appointment
of the petitioner, being the senior most judge, as Chief Justice Supreme Court, but it
is procrastinated in Prime Minister of Pakistan Secretariat till now. That having no
other remedy or forum available to protect his legal and constitutional rights from
being prejudiced at the hands of the Government of Pakistan, acting through its
Prime Minister and other ministries from their secretariats in Islamabad, the
petitioner invokes the kind indulgence of this August Court being the ultimate
arbiter of
justice for the territories comprising Pakistan on the following grounds amongst
other:
GROUNDS: a. That the Prime Minister of Pakistan despite being the Chairman of
the Azad Jammu and Kashmir Council was under an oath of the Constitution of
Pakistan and while operating from Islamabad, was bound to follow the guidelines as
laid down by the Supreme Court of Pakistan in all the matters within his powers and
authority in respect of Azad Jammu and Kashmir. He was bound to render advice
for appointment of the Chief Justice Azad Kashmir in accordance with the
judgments of the superior
courts of Pakistan. In the words of Justice Ajmal Mian (as his lordship
then was): since the interpretation of various articles by this Court becomes part of
the Constitution and as it becomes the law, it is incumbent on all the Executive and
Judicial Authorities throughout Pakistan to act in aid of the Supreme Court by
virtue of Article 190. An advice under clause (1) of Article 48 of the Constitution
therefore, cannot be in violation of the law as declared by this Court. In other words,
if the advice tendered by the Prime Minister in respect of appointments of the Judges
of the superior Courts is in accordance with the judgment of this Court in the Judges
Case, it will be binding on the President. (Underlining is added for the sake of
emphasis) [Al-Jehad Trust Case [PLD 1997 SC 84 at page 193] According to the well
settled law, as laid down by the Supreme Court of Pakistan in the Judges Case
(reported as PLD 1996 SC 324) and Malik Asad Alias Case (reported as PLD 1998
SC 161),
only the senior most judges could have been appointed as the chief
justice of the AJK Supreme Court in the absence of any justiciable reasons. Justice
Irshad Hassan Khan in Malik Asad Alias case, while agreeing with the majority,
stated: Clearly, the judges of the Supreme Court of Pakistan are elevated from
different High Courts of the Provinces because of their merit/seniority. It would
therefore be wrong and unjust to choose a junior judge and put him at the top as
Chief Justice of Pakistan in
violation of the principle of seniority which to be followed strictly in case of
appointment of Chief Justice of Pakistan in accordance with the provisions of the
Constitution and in consonance with the well-established constitutional conventions.
(Underlining is added for the sake of emphasis) [At page 362 of the Malik Asad Alias
case reported as PLD 1998 SC 161] Thus the Prime Minister of Pakistan was not
justified in advising the President to appoint the incumbent Chief Justice; b. That
the overall constitutional scheme of the Interim Constitution Act (being pari materia
to the Pakistani Constitution) envisages that the senior most judge has the legitimate
right to be appointed as the Chief Justice. Even the appointment of Acting Chief
Justice under section 43-A of the Interim Constitution contemplated that the senior
most judge should perform such a function. This rule of propriety had to be
honoured in all circumstances until concrete and solid reasons given/recorded and
communicated by the Prime minister/Executive in writing were there. It
was important to appoint the senior most judges as the Chief Justice otherwise, as in
the words of Justice Manzoor Hussain Sial in the famous Judges Case: a Junior
most Judge in the High Court may aspire to become Chief Justice of the High Court
by passing his seniors and to, achieve this object resort to undesirable conduct by
going out of his way to oblige the Government in power. If he succeeds in securing
his appointment as Chief Justice by superseding his seniors, by resorting to such
measures he will endanger the independence of Judiciary and destroy the public
confidence in the Judiciary. [At- in the Judges case reported as PLD 1996 SC 324].
The wisdom bestowed in the Judges case was equally applicable in the case
concerning the appointment of the Chief Justice of the Supreme Court as expressly
held in Malik Asad Alias case reported as PLD 1998 SC 161]. c. That after the
restoration of judiciary to its constitutional position of
seniority and appointment of all the Chief Justices in the provinces according to the
rule of seniority, AJK cannot be dealt with arbitrarily and the rightful petitioner as
well as the people of AJK cannot be discriminated vis a vis their counter parts of the
other provinces who sink and swim together. Besides its special nature under the UN
Charter, AJK is assimilated in the main stream with Prime Minister of Pakistan as
its head for all those subjects who are of federal nature. Hence judiciary in AJK
cannot be administered in an unruly manner by applying double standards; d. That
the appointment of the Chief Justice of the AJK on the binding advice of the Prime
Minister of Pakistan is done wholly and solely by the Government of Pakistan, and
the Government of AJK has minimal or effectively no role of whatsoever nature to
play except the implementation of the decision taken by the Government of Pakistan,
therefore the same deserves to be interfered with by this August Court. It is an
established fact that in August 2006, the relevant ministry AJK
Council Secretariat had recommended the petitioner only for appointment as the
Chief Justice of AJK, no action was taken on the same. On the other hand, to the
utter surprise, the Prime Minister of Pakistan on his official letter head and not on
the letter head of the AJK Council used ordinarily (both are attached herewith)
advised the appointment of the incumbent Chief Justice on 25/10/2006. Further
on 25/06/2008, the Secretary AJK Council sent a summary for the Prime Minister of
Pakistan for declaring the petitioner as the Chief Justice of AJK. It is pertinent to
note that the said summary was not sent
directly to the Prime Minister of Pakistan but has been routed through the Secretary,
Ministry of Law & Justice and Human Rights, Government of Pakistan, Islamabad,
meaning thereby that it is the Government of Pakistan which makes the decision
with respect to the said appointment, AJK council is only a device.
This fact was clearly stated by the law minister of the AJK on the Assembly floor on
10/01/2007 according to whom the appointment was not made by the Government of
AJK but Pakistan and the Government of AJK had absolutely no role to play in the
whole process. Thus, the Government of Pakistan, as custodian of rights of the
people of Pakistan, was required to act in all fairness of things by adhering to the
provisions of the Constitution, constitutional conventions and principles of law as
settled by this Honorable Court.

e. That the Chief Executive of Pakistan is bound under the United Nations Security
Council and all other international resolutions and conventions under which
Pakistan has assumed the responsibility, to
provide better administration and Government in AJK as regulated by the Interim
Constitution Act, given by Pakistan itself. It has badly failed in discharging the
responsibility by not providing and ensuring independence of judiciary, free of
political considerations and ulterior designs, installed and based on transparent
constitutional conventions recognized throughout the world and under domestic laws
and precedents, calling for intervention of UN Security Council in case the
unconstitutional actions are not rectified, bringing a bad name to the state of
Pakistan; f. That the Government of Pakistan is a signatory to the universal
declaration of human rights and is bound to carry into effect in letter and spirit all
the provisions of the declaration particularly under Articles 7, 8, 10 and 21. The right
visualized by these articles is particularly denied to the senior most Judge by not
appointing him as Chief Justice of Azad Jammu and Kashmir; g. That the petitioner
had an unblemished record of service throughout his life and there was no reason
that he could have been ignored for appointment as the Chief Justice. Refusal to
appoint the senior most Judge as Chief Justice is the violation of domestic and
international law to equal access to public service and amounts to victimization of
the petitioner at the hands of political figures which at all costs be eliminated; h.
That the people of the State in general are denied the right to an effective
remedy by the competent national tribunal composed of experienced, independent
and impartial persons of integrity and undisputed character and antecedents; 1. The
Government of Pakistan as a member of United Nations has a higher burden of
responsibility to show that it works to secure and promote the independence of
judiciary in the territory, and more so, in the disputed territory where its control is
under UNCIP resolutions. By passing an advice which was contrary to the norms of
justice and fairplay, the Government has breached its international obligations
which must be corrected by this August Court in exercise of
constitutional jurisdiction especially when the executive is adamant in not
performing its due obligations bonafidely; That the appointment of the incumbent
Chief Justice of the Honorable Supreme Court within three weeks of his
appointment as judge of the Supreme Court is not a judicious exercise of the
discretion vested in the Prime Minister of Pakistan. Public figures and bodies do not
enjoy discretion which could be used by them at their whims and caprice by ignoring
the settled principles of law. Their exercise of discretion cannot be equated with those
of private individuals who may not be answerable to anyone but themselves. Where
the Prime Minister of Pakistan advised the President Azad Jammu & Kashmir to
appoint the incumbent Chief Justice, the same on the very face of the record was
malafide, arbitrary and capricious exercise of his discretion being against the
principles of law as laid down by the superior Courts of this land and therefore is
liable to be set aside by this August Court; The manner in which the mandatory
advice for appointment of Chief Justice of the Supreme Court AJK was issued by the
Prime Minister of Pakistan
has adversely affected the independence of judiciary and the confidence of the people
in the rule of law and good governance, which cannot be allowed to sustain. That
the concept of the Independence of Judiciary connotes that the judges should be able
to decide the cases free of any fear and favour. In the words of Justice Naseem
Hassan Shah: The independence of the judiciary means:
(a) that every Judge is free to decide matters before him in accordance with his
assessment of the facts and his understanding of the law without improper
influences, inducements or pressures, direct or indirect, from any quarter or for any
reason; and (b) that the Judiciary is independent of the Executive and Legislature,
and has jurisdiction, directly or by way of review, over all issues of a judicial nature.
(Underlining is added for the sake of emphasis) [At page 108 of Sharaf Faridia Case,
reported as PLD 1994 SC 105] [Similar views were expressed by Justice Irshad
Hassan Khan in Liaquat Hussain case [PLD 1999 SC 504 at page 807] Wherever the
judiciary is open to any influence be that be political, financial or otherwise, right of
the people to have access to justice is badly denied; That the judiciary of the Azad
Jammu & Kashmir cannot be made slave to political pressures exerted by the
Government of Pakistan to achieve ulterior designs of its favorites. The Government
of Pakistan had itself guaranteed the provision of fundamental rights to its citizens
by being a signatory to different declarations on human rights. It cannot be negated
that the due process of law as enshrined in Article 4 of the Constitution of Pakistan
inevitably requires an independent and impartial Court and Tribunal and unless
judiciary is independent, the fundamental right of access to justice cannot be
guaranteed [Aziz Ullah Memon Case, reported as PLD 1993 SC 341];
That the violation of the principles of law as enunciated by the superior Courts of
Pakistan are liable to be rectified by the very authority which has passed the same,
i.e. the Prime Minister of Pakistan in the instant case, either suo moto or on the
application of the petitioner. No rights can be gained or protected on the basis of an
order which is arbitrary, capricious and therefore illegal. It is trite law of this land
that wherever an order is illegal, the same can be withdrawn the moment illegality
comes to the notice of the authority passing the illegal order. But no action has been
taken despite the lapse of almost three years and the people of AJK are made to
suffer by the Government of Pakistan at the hands of a judiciary which by no score
could be called independent; That the petitioner, who had gone on long leave as a
protest was harassed,
intimidated and pressurized to resign, deprived of lawful entitlement of staff,
security and protocol. His kith and kins in the service were victimized. A malicious
campaign of character assassination was
unleashed against him with the connivance of the central Government officers and
the incumbent Chief Justice, but the petitioner kept on bearing it as judge so that a
symbol of resistance against injustice
remains pricking to the conscience of those who witnessed and protested against it.
The petitioner has repeatedly been making representations to the Prime Minister of
Pakistan but his grievances have remained
unattended since October 2006. That the illegal and unconstitutional appointment
of the incumbent Chief Justice AJK Supreme Court gave rise to a recurring cause of
action and until this August Court corrects the wrong, a continuous injustice will
remain perpetrating and the people of Pakistan especially the AJK will remain
deprived of their fundamental right of access to justice; That all executive and
judicial authorities throughout Pakistan are bound to act in aid of the Supreme
Court of Pakistan to carry into effect its directions in all matters including
enunciation of principle of law and Supreme Court of Pakistan alone is competent to
enforce its orders under Article 187, 189 and 190 of the Constitution of Pakistan
throughout Pakistan and apprehend anybody and everybody for violating the
directions laid down by it; In view of above, it is most humbly prayed that: The
advice dated 20/10/2006 for appointing Junior Judge of the Supreme Court AJK,
Justice Muhammad Riaz Akhter Chaudhry as the Chief Justice AJK, and resultantly
the appointment, be declared as illegal, unconstitutional and of no legal
conseq9uence being contrary to
Constitution, Constitutional conventions and the settled principles of law enunciated
by this August Court;

ii) The Prime Minister of Pakistan be directed to forthwith issue a fresh advice for
appointment of the petitioner as the Chief Justice Supreme Court of AJK, with a
direction to the President of the AJK to act upon the advice instantly;
iii) The Government of Pakistan be directed to arrange suitable amendment in the
Interim Constitution Act to deduct period during which the petitioner remained
deprived of his right to hold the office of Chief Justice AJK, from his age of
superannuation so as to prevent the spirit of the Constitution from being defeated
and to prevent any such future adventurism;
(iv) the Governments of Azad Jammu & Kashmir and Pakistan be directed to
adequately compensate the petitioner for the violation of his legitimate constitutional
right and for mental torture the petitioner and his family has undergone since
October 2006.
(v) Any other relief which this Honorable Court may find the petitioner entitled to
may also be granted.
Drawn & Filed by Arshad Ali Ch Advocate-on- Record CERTIFICATE Certified
that no other Constitutional petition has been filed in the Supreme Court on the
subject ADVOCATE-ON- RECORD Note. Mr. Mohammad Akram Sheikh, Senior
Advocate will appear on behalf of the Petitioner. ADVOCATE-ON- RECORD 06-05-
2009 BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN (Original
Constitutional Jurisdiction)
Const. Petition No. /2009
Justice Syed Manzoor Hussain Gillani Petitioner
Versus

Government of Pakistan etc.... Respondents AFFIDAVIT OF FACTS I, Ch. Arshad


Ali., Advocate-on- Record, Supreme Court of Pakistan, Islamabad, do solemnly
hereby affirm and declare as under:-
That the facts contained in the accompanying Constitutional Petition are true and
correct to the best of my knowledge, information and belief as per record of the case
produced by the petitioner. SWORN at Islamabad this day of 06-05-2009
DEPONENT BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN
(Original Constitutional Jurisdiction) Const. Petition no /2009 Justice Syed Manzoor
Hussain Gillani Petitioner

versus Government of Pakistan etc. Respondents


AFFIDAVIT OF SERVICE I, Arshad Ali Ch, Advocate-on- Record, Supreme Court
of Pakistan, Islamabad, do solemnly hereby affirm and declare as under:- That the
deponent did serve the respondent through registered Notice intimating about the
filing of Constitutional Petition under Article 184(3) of the Constitution of Islamic
Republic of Pakistan, 1973, in the Supreme Court of Pakistan.
SWORN at Islamabad this day of 11-10-2007
DEPONENT

BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN (Original


Constitutional Jurisdiction)

Const. Petition No. /2009 Justice Syed Manzoor Hussain Gillani s/o Syed Hassan
Shah Gillani, R/O 1-Shaukat Line, opposite Neelam Stadium, Muzaffarabad, Azad
Kashmir. Petitioner
Versus
1. Government of Pakistan through Principal Secretary to the Prime Minister, Prime
Minister Secretariat, Islamabad8

2. Prime Minister of Pakistan as Chairman Azad Jammu & Kashmir Council


through Secretary In charge, Azad Jammu & Kashmir Council, Secretariat,
Islamabad
3. Ministry of Law, Justice and Human Rights, Government of Pakistan, Islamabad
through its Secretary
4. Ministry for Kashmir Affairs & Northern Areas, Islamabad through its Secretary

5. The Azad Jammu & Kashmir Council, Secretariat II, Islamabad through its Secretary

6. Government of Azad Jammu & Kashmir, the Secretariat, Muzaffarabad, through its
Chief Secretary

7. Department of Law, Justice, Parliamentary Affairs and Human Rights Azad Jammu
& Kashmir through its Secretary
8. The Honorable Mr. Justice Muhammad Reaz Akhtar Chaudhry, Chief Justice Azad
Jammu & Kashmir Supreme Court, through Registrar Supreme Court Respondents
NOTICE

Please take notice that I have filed a titled Constitutional Petition under Article 184(3) of
the Constitution of Islamic Republic of Pakistan, 1973, in the Supreme Court of
Pakistan. Arshad Ali Ch Advocate-on- Record,
06-05-2009 BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN
(Original Constitutional Jurisdiction) Const. Petition No. /2009
Justice Syed Manzoor Hussain Gillani Petitioner versus Government of Pakistan
etc.... Respondents CONCISE STATEMEN
The petitioner is a law abiding citizen of Pakistan and the senior most judge of the
Honorable Supreme Court Azad Jammu & Kashmir having worked as such since
August 2004. The petitioner has had an unblemished
record of service not only as judge of the Supreme Court but as judge of the Azad
Jammu & Kashmir High Court (1991-2001), as its Chief Justice (2001-2004) besides
having held the offices of the Advocate General & Chief Election Commissioner,
AJK, and the Vice Chancellor of the AJK University. He has immensely contributed
to the development of law through judicial pronouncements of constitutional
importance and wrote multiple articles published in the well respected journals of
Pakistan besides being the author of three books on constitutional law; The
Government of Pakistan has assumed the responsibilities of the Azad Jammu and
Kashmir territory, called local authority within the spirit of various U.N. Security
Council and UNCIP Resolutions and its administration is regulated for the time
being under the Azad Jammu and
Kashmir Interim Constitution Act, 1974, (hereinafter referred to as the Interim
Constitution Act, which is given by the Government of Pakistan for the better
Government and administration. The relevant part of the preamble of the Interim
Constitution Act states that: AND WHEREAS, it is necessary to provide for the
better Government and administration of Azad Jammu and Kashmir until such time
as the status of Jammu and Kashmir is determined as aforesaid and for that purpose
to repeal and re-enact the Azad Jammu and Kashmir Government Act, 1970, with
certain modifications; AND WHEREAS, in the discharge of its responsibilities under
the UNCIP Resolution, the Government of Pakistan has approved of the proposed
repeal and re-enactment of the said Azad Jammu and Kashmir Government Act,
1970, and authorized the President of Azad Jammu and Kashmir to introduce the
present Bill in the Legislative Assembly of Azad Jammu and Kashmir for
consideration and passage. Case Law:

1. PLJ 1999 AJK 1


2. PLD 2006 Lah. 465
3. PLD 1996 SC 324
4. Federation of Pakistan Vs. Public at Large (PLD 1988 Supreme Court 202)
5. Government of Blochistan Vs. Azizullah Memon nd others (PLD 1993 S C 341)
6. Government of NWFP V. Said Kamal Shah (PLD 1986 Supreme Court 360)

NOTE; Other case law/material will be placed before the Honorable Court at the
time of the hearing of the petition.

CERTIFICATE: Certified that I have myself prepared this Concise Statement and
found it correct.
Arshad Ali Ch Advocate-on- Record BEFORE THE HONOURABLE SUPREME
COURT OF PAKISTAN
(Original Constitutional Jurisdiction)
Const. Petition No. /2009 Justice Syed Manzoor Hussain Gillani. Petitioner
Versus Government of Pakistan etc. ... Respondents Counsel for the Petitioner
Muhammad Akram Sheikh, SASC With Arshad Ali Ch, AOR Counsel for the
Respondents - I N D E X Sr. No. Description Dated Page
1. Concise Statement 06-05-2007 A B 2. Const. Petition 06-05-2007 01 18 3. Copy of
advice to President AJ&K 20-10-2006 19 4. Format of advice 05.09.1990 20 5. Copy
of Notification 21.10.2006 21 6. Summary for the Prime Minister with Non Paper
25.06.2008 22 25 7. Representations to Prime Minister of Pakistan 26 34 8. Copy of
Writ Petition 35 43 9. Contempt of Court Notice 27.03.2007 44 10. Order of AJ&K
Supreme Court 28.03.2007 45 47 11. Written Statement by the JKCHR 07.06.2007 48
51 9. News Cutting 52 56 10. Affidavit of facts & Services 06-05-2007 57 58 11. Notice
06-05-2007 59
Certified that the paper books has been prepared in accordance with Rules of the
Court and that all documents necessary for due appreciation of the case, have been
included in it.
Arshad Ali Ch Advocate on Record