Supreme Court of AJ&K 4.5

Unlike other territories of Pakistan enjoying the provincial status, Azad Jammu and Kashmir is the only administrative unit in Pakistan, which has its own Supreme Court. The State, during the Dogra Regime also had an apex judicial forum in the name of Board of Judicial Advisers akin to the Privy Council and was regulated under section 71 of the Constitution of the State of Jammu and Kashmir, 1939. Though mechanism of apex appellate Court remained in vogue in the State, but it was given the name of Supreme Court for the first time in 1975.

After the emergence of Azad Jammu and Kashmir, sections 13-A to 13-C were added by amendment in Courts and Laws Code, 1949 under Government Order No. 242/58 dated 5.6.1958, designating a Division Bench of High Court to be the appellate forum against the judgments and orders passed by a Single Bench of the High Court. A self-contained procedure was provided therein, regulating the powers and procedure of the Division Bench.After the enforcement of Azad Jammu and Kashmir Government Act, 1970, section 24- A was added by amendment in 1974, whereby Judicial Board was constituted as the highest appellate forum.

As a follow-up of the constitutional provision, the Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974 was passed by the Assembly, as Act No. XX of 1974. Under section 3 of the Judicial Board Constitution Act, the Board was to consist of two or more members to be appointed by the President, one of whom was to be designated as a Senior Member of the Judicial Board. The Judicial Board was to hear and determine appeals from the judgment, decree, order and sentence passed by the High Court of Azad Jammu and Kashmir and the decisions of the Board were binding on all other Courts.

On coming into force of Azad Jammu and Kashmir Interim Constitution Act, 1974, the provisions identical to section 24-A were added as section 42. This section was later on amended through First (Amendment) Act, 1975 (Act IX of 1975) and the Supreme Court of Azad Jammu and Kashmir was substituted for Judicial Board. Consequently, the Judicial Board Act was also amended through Amendment Act No. VIII of 1975, whereby Senior Member of the Judicial Board was designated as the Chief Justice of Azad Jammu and Kashmir and the member as the Judge. When the Supreme Court was substituted for Judicial Board by virtue of (Azad Jammu and Kashmir Constitution, First Amendment Act, 1975) the Chief Justice, then holding the office, was given protection under subsection (14) of this section. The legal proceedings which were pending in the Judicial Board immediately before the commencement of First Amendment Act 1975, were also transferred to the Supreme Court and the orders made by the Judicial Board before the amendment were also given protection. After promulgation of Interim Constitution Act, 1974, the Supreme Court became a permanent feature of Azad Jammu and Kashmir Interim Constitution Act, 1974.

PRESENT POSITION OF THE SUPREME COURT OF AJ&K.
slideThe Supreme Court of AJ&K is the highest Court of appeal in Azad Jammu and Kashmir. It consists of a Chief Justice and two other Judges. The Chief Justice of Azad Jammu and Kashmir shall make before the President, and the other Judge before the Chief Justice of Azad Jammu and Kashmir oath of their offices before entering upon the office. Appointment of Chief Justice and Judges shall take effect from making the oath of their offices. Unless a Judge of the Supreme Court (which includes Chief Justice) resigns earlier or is removed from his office in accordance with law, he shall hold office until he attains the age of sixty-five years.

The remuneration and other terms and conditions of service of the Chief Justice and other Judges of the Supreme Court including their salary, allowances, privileges and pension are the same as admissible to their counterparts in the Supreme Court of Pakistan in view of Schedule IV of the AJ&K Interim Constitution Act, 1974.

JURISDICTION OF THE SUPREME COURT

The criminal and civil appellate jurisdiction of the Supreme Court of AJ&K is regulated by sub-section (11) of section 42 of the AJ&K Interim Constitution Act, 1974 under which appeal lies to the Supreme Court from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir. Similarly an appeal also lies to the Supreme Court from the order passed by the Shariat Court of Azad Jammu and Kashmir under Islamic Penal Laws Act, Shariat Court Act and other Islamic Penal Laws. In the cases where sub-section (11) of section 42 is not attracted, the appeal lies to the Supreme Court against any judgment decree order or sentence of the High Court, if the Supreme Court grants leave to appeal. Similarly an appeal lies to the Supreme Court from the judgment, decree, order or sentence of an administrative Court or Tribunal under subsection (3) of section 47 of the Interim Constitution Act, if the case involves a substantial question of law of public importance and Supreme Court grants leave to appeal.

There is no provision in the AJ&K Interim Constitution Act, 1974, like Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 vesting original jurisdiction in the Supreme Court of Pakistan. The Supreme Court of Azad Jammu and Kashmir is only the Appellate Court as the Board of Judicial Advisors and Judicial Board used to be. It cannot entertain any direct petition nor can issue any order except in an appeal. The only original jurisdiction it has is the advisory jurisdiction under section 46-A of the Interim Constitution Act. The appellate powers of the Supreme Court of Azad Jammu and Kashmir are identical and at par with the powers of the Supreme Court of Pakistan.

CONSTITUTION OF BENCHES & DIFFERENCE OF OPINION

Through 10th amendment in the Constitution by way of Act No. XX of 1993, sub-section (13) was introduced in section 42 of Interim Constitution Act, 1974 providing some procedural matters relating to constitution of Benches and hearing of appeals by the Supreme Court. At least two Judges shall compose a bench to hear an appeal and only Chief Justice can constitute and reconstitute the bench. When there is a difference of opinion between the Judges hearing the case, the opinion of majority shall prevail, and if there is no such majority, then the case shall be placed before another Judge to be nominated by the Chief Justice and if there is no such Judge, the judgment, decree, order or sentence appealed from shall be deemed to be the judgment of the Supreme Court. However if the difference of opinion is only in respect of nature, quantum, extent of the relief, liability, penalty or punishment to be granted or imposed, the decision of the Supreme Court shall be expressed in term of opinion of the senior of the two Judges.

The Supreme Court of AJ&K in exercise of its inherent powers can check the illegality committed by the subordinate Courts and bring the same in accordance with law. It is provided in section 42-A of the Interim Constitution Act 1974, that all executive and judicial authorities throughout Azad Jammu and Kashmir shall act in aid of the Supreme Court, which means whenever an order and direction is issued by the Supreme Court to any authority whether judicial or executive, all shall collaborate in giving effect to such order or direction and aid each other in execution of that direction or order.

Under sub-section (4) of section 42-A of the Interim Constitution Act, the Supreme Court is competent to make rules regulating the practice and procedure of the Court in consultation with the Council. The Supreme Court has made the Rules in consonance with this sub-section in 1978. Before the promulgation of the Supreme Court Rules 1978, the Rules framed by the Judicial Board were followed as the Rules of practice and procedure of the Supreme Court which stand superseded by the Rules of 1978.

Under the Constitution of Pakistan 1973, the Supreme Court of Pakistan is not bound to consult any authority in making rules regulating its practice and procedure, while the Supreme Court of Azad Jammu and Kashmir cannot make the rules without the consultation of the Council.

Under section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974 the decisions of the Supreme Court of AJ&K insofar as they decide any question of law or are based upon or enunciate a principle of law, shall be binding on all the Courts in Azad Jammu and Kashmir. The law declared by the Supreme Court is equally binding on all the citizens and functionaries of the State whether they were parties to the decision or not.

The principal seat of the Supreme Court of AJ&K is at Muzaffarabad. Besides principal seat at Muzaffarabad, the Supreme Court holds its sitting at Mirpur and Rawalakot. Cases are filed at principal seat and/or branch registries. Benches of the Court rotate between the principal seat and branch registries to dispose of cases, due to which it is convenient for the litigant parties to have easy access to justice closer to their home cities.

Section 42-D of the Interim Constitution Act, 1974, specially authorizes the Supreme Court of AJ&K to review any judgment, pronounced or any order made by it. The review powers of the Supreme Court are regulated by Order XLVI of the Supreme Court Rules, 1978 in civil as well as in criminal cases. Under rule 1 of Order XLVI of the Supreme Court Rules, the Court may review its judgment or order in civil proceedings on the grounds similar to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure and in criminal proceeding on the grounds of an error apparent on the face of record.