2015 Y L R 47

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Ch. SHAMSHAIR ALI---Petitioner

Versus

KHALID MAHMOOD---Respondent

Civil Revision No.1648 of 2014, decided on 9th May, 2014.

(a) Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Legal practitioners and Bar Councils Act (XXXV of 1973), S.56---Pakistan
Legal Practitioners and Bar Councils Rules, 1976, Rr. 134 & 166---Closure of evidence---Strike
by District Bar after 11-00 a.m.---Scope---Right to produce remaining evidence of plaintiff was
closed after granting fifty two opportunities for the same---Contention of plaintiff was that
District Bar was observing strike and no effective proceedings could have been taken and
provisions of O.XVII, R.3, C.P.C. could not be applied---Validity---Party to a proceedings who
had been held responsible to perform certain acts would be liable to be penalized in case of
default on the part of such party---Court might proceed to decide the suit forthwith where party
to a suit to whom time had been granted had failed to produce his evidence notwithstanding such
default---Call of strike was taken as a cover---Counsel was bound to appear in the court when a
matter was called and if same was not so possible then to make satisfactory alternative
arrangements---Counsel was bound to act without fear or favour for just cause of clients
diligently---Counsel could not escape from proceedings before a Court of law---No illegality or
irregularity had been pointed out in the impugned order---Revision was dismissed in circum-
stances.

Amanullah v. Haq Nawaz and 3 others 2013 CLC 1152; Muhammad Aslam v. Nazir
Ahmed 2008 SCMR 942 and Shambilid Ghori and another v. Mst. Tayyaba Begum PLD 1989
Lah. 478 ref.

(b) Words and Phrases---

----"Vakeel"---Meaning.

Tahir Mahmood Khokhar for Petitioner.

ORDER

IBAD-UR-REHMAN LODHI, J.---By means of this Civil Revision Petition, the

petitioner has assailed the findings of the learned trial court arrived at on 20-2-2014, whereby the
right to produce remaining evidence of the plaintiff/present petitioner was closed by invoking the
penal provisions of Order XVII, Rule 3, C.P.C.

2. The suit was filed on 17-5-2006 and after taking written statement from the defendant
side, issues were framed on 23-12-2006. In all, till 20-2-2014, the plaintiff availed fifty two (52)
opportunities for production of his evidence and during this period, the statements of four
witnesses were got recorded in interval of a considerable gap. On 26-9-2009, the statement of
P.W.1 was recorded, on
9-2-2010 the statement of P.W.2 and after one year on 23-2-2011, P.W.3 appeared and got
recorded his statement and lastly on 3-12-2011, the statement of P.W.4 was recorded. During this
period, once the suit was dismissed for non-prosecution on 18-5-2010, which was restored on 9-
5-2011. Fifty two opportunities provided for production of evidence includes a number of last
and final opportunities. 17th February, 2014 was the immediate preceding date to 20th February,
2014, when the provisions of Order XVII, Rule 3, C.P.C., were applied. On 17-2-2014 the Clerks
of the counsel for the parties appeared and in absence of any evidence of the plaintiff, a request
was made on behalf of the plaintiff for adjournment and the matter was adjourned to 20-2-2014
with a clear understanding that it will be the last opportunity for remaining evidence of the
plaintiff.

3. The interim order sheet maintained by the learned trial court reveals that on 20th
February, 2014, the case was taken up four times. On first occasion only defendant made his
appearance and the matter was kept in waiting. On second call in addition to the defendant, one
summoned witness from Muslim Commercial Bank made his appearance and for the reason that
from the plaintiff side none entered appearance, again the case was kept in waiting. On third call,
neither the plaintiff nor any witness appeared and when lastly at 3:30 p.m. on the same date the
case was called, plaintiff appeared without any evidence. The plaintiff informed that even the
summoned witness had left the premises of the court. Since it was the last opportunity provided
to the plaintiff for production of remaining evidence, therefore, in case of failure on his part to
comply with such directions, the order impugned herein was passed.

4. In support of the petition, the learned counsel for the petitioner has argued that the local
Bar of District Sargodha was observing strike on 20th February, 2014 and, therefore, on account
of non-appearance of the learned counsel for the plaintiff, no effective proceedings could have
been taken and premium of that strike must be provided to the defaulting plaintiff and penal
provisions of Order XVII, Rule 3, C.P.C. should not have been applied. Further contended that
when summoned witness appeared before the court, it was the duty of the court to compel the
said witness to get his statement recorded and even in case of failure of the plaintiff or his
learned counsel to appear, the Presiding Officer of the court himself should manage the
recording of evidence of said witness. The learned counsel for the petitioner, in support of his
contentions, has placed reliance on "Amanullah v. Haq Nawaz and 3 others" (2013 CLC 1152),
"Muhammad Aslam v. Nazir Ahmed" (2008 SCMR 942), "Shambilid Ghori and another v. Mst.
Tayyaba Begum" (PLD 1989 Lahore 478). In Amanullah's case (referred above), the strike of
Bar during the period from 2007 to 2009 was taken as a valid ground for non-appearance of the
learned counsel for the parties and the penal action taken by the courts below during such period
was held not to be justified, whereas, in the case of Muhammad Aslam (Supra) it was held that
the word "forth-with" means without any further adjournment yet it cannot be equated with the
words "at once pronounce the judgment" whereas in case of Shambilid Ghori and another (cited
above) a general principle has been reiterated that "no party is to suffered for any act/omission of
the Court". A single Bench of Peshawar High Court in Amanullah's case has held in a matter,
wherein during the days falling in between 2007 to 2009, a trial court applied penal provision of
Order XVII Rule 3 C.P.C as under:--

"As far as the period from March, 2007 till the impugned order dated 26-8-2008 was
passed, the petitioner/plaintiff cannot solely be held liable for the non-production of his evidence
as well as his learned counsel before the learned trial Judge. It is by now part of our history that
when a tyrannical regime struck at the superior judiciary firstly in the month of March, 2007 and
then on 3rd November, 2007 when emergency was imposed, the entire lawyers' community of
the country went on one strike after another. During those days, invariably all the courts of the
country wore a deserted look and the same continued till the lifting of the emergency and the
restoration of the honourable judges of the honourble Superior Courts to their respective offices
in a respectable manner."

No doubt the era from 2007 to 2009 was an extra-ordinary period and whole of the legal
fraternity including Bench and Bar were committed for one noble cause i.e. the restoration of
independence of Judiciary and release of Hon'ble Senior Judges, however, after once that goal is
achieved, every one, the Lawyers and the Judges went back to their original and actual position
and started playing their respective role in process of dispensation of justice. However, it is a
matter of common practice that we are being experienced strikes of Bar on one pretext or the
other even after 2009 and even after the end of dictatorial regime.

5. In the history of Nations, periods full of events are experienced by the Nations and to
cope with the extra ordinary situation, it was to be confronted with the Nation or a particular part
of the Nation, every segment of society in general and the directly concerned persons, in
particular, are expected to discontinue their normal routine of life and to provide energy and
strength to the cause with which whole of the Nation at the relevant time is being confronted.

6. Our father of Nation "Quaid-a-Azam Muhammad Ali Jinnah" during crucial period of
"Pakistan Movement" even demanded and allowed the students of Ali Garh Muslim University
and Islamia College Peshawar to discontinue their process of education and to spread over in far-
flung areas of undivided Sub-continent to mobilize the masses for creation of Pakistan, but once
the noble goal of creation of Pakistan was achieved, it was the same Quaid-a-Azam, who
directed the students to go back to their Educational Institutions and to devote their whole
attention to get education as the politics and political activities were not part of their educational
activities.

7. Similarly, once the dictator goes and our Judiciary has gained its earlier position of
independent judiciary and the Hon'ble Judges in superior Judiciary got back to their respective
position then for the both, Bench and Bar, it was high-time to revert back to their noble cause to
contribute in the process of dispensation of justice. The young blood entered in the Bar during
the period of such emergency in fact opened the eyes in agitation and strikes as the overall
complexion of the Bar has been converted into some what militant Bar. To such young inductees
in the Bar, it would be a difficult job to ask them to pay more attention to academics than to put
their more energies towards agitation.

8. In every procedural law, it is the "Party" to a proceedings, who has been held responsible
to perform certain acts and in case of default on the part of such party, the penalty is liable to be
invoked upon such party. Similarly in Order XVII, Rule 3 C.P.C., where "party" to a suit to
whom time has been granted, fails to produce his evidence, the court may notwithstanding such
default proceed to decide the suit forthwith. Nowhere a latitude is provided in case the learned
counsel representing a party does not appear.

9. In our common practice the lawyers and Advocates are known and called as "Vakeel' ( ).
It is an Arabic word and in '( ) by " " published by " " the meanings of word " " have been
provided as follows:-

In Pakistan, the Legal Practitioners and Bar Councils Act, 1973 was promulgated with certain
modifications, re-enacting the law relating to Legal Practitioners and Bar Councils and to
provide for certain incidental and ancillary matters.

10. In exercise of powers conferred by section 55 of the said Act, the Pakistan Bar Council
makes the Rules known as Pakistan Legal Practitioners and Bar Councils Rules, 1976. Chapter
XII thereof provides the canons of profession, conduct and etiquette of Advocates. Rule 134
whereof provides that it is duty of every Advocate to uphold at all times the dignity and high
standing of his profession, as well as his own dignity and high standing as a member thereof.
Rule 166 provides that 'it is the duty of Advocates to appear in Courts when a matter is called
and if it is not so possible to make satisfactory alternative arrangements'.

11. For Province of Punjab, the Punjab Bar Council in exercise of powers conferred by
section 56 of the Legal Practitioners and Bar Councils Act, 1973 (Act XXXV of 1973), provides
the Rules of Business of Bar Association-Memorandum of Association. Rule 4(i) of the said
Rules provides the duties of the lawyers as to act without fear or favour for just cause of his
clients and according to Rule 4(ii) of the said Rules, it is the duty of the lawyer to devote himself
to the cause of his client diligently.

12. What emerges from the above discussion is that there is no escape for a lawyer, who has
been engaged to look after the interest and cause of his client by disappearing or non-appearing
in judicial proceedings before a court of law. The trend of strikes should not be stretched in any
manner that on every second day, the courts are told that the lawyers are not performing their
statutory duties. On every other day, we experience that it is being noted in the order sheets of
the courts of law that lawyers are observing strike and for that reason, the judicial process is
being interfered with and courts are not allowed to proceed with the matters in absence of the
lawyers, who on every 2nd day on petty matters observe strike.

13. In the case in hand, the learned counsel for the petitioner in support of his contention that
on 20th February, 2014, the Bar was observing strike has placed on record a copy of notice
issued by Secretary, District Bar Association, Sargodha, which indicates that call of the Bar was
to observe strike on 20th February, 2014 after 11:00 a.m. The courts in Punjab during those days
started their working at 08:00 a.m. Had the plaintiff been sincere in getting the statement of his
witness/witnesses recorded by availing the last opportunity provided in that regard, he would
have ample opportunity from 08:00 a.m. to 11:00 a.m. to accomplish his job, but the call of strike
had been taken as a cover for non-appearance of the learned counsel during whole of the day and
thus, the learned trial court was left with no option but to exercise the jurisdiction vested with it
under the provisions of Order XVII Rule 3 C.P.C., which has rightly been exercised.

14. The learned counsel for the petitioner has failed to point out any illegality or irregularity
in the impugned order and thus no exception is possible to the same.

15. This petition having no force is dismissed.

AG/S-105/L Revision dismissed.

P L D 2015 Supreme Court 257

Present: Jawwad S. Khawaja, Ejaz Afzal Khan and Qazi Faez Isa, JJ

C.M.A. NO. 4343 OF 2014 IN S.M.C. NO. 1 OF 2005

(Matter regarding publishing/printing incorrect version of section 23 of Contract Act,

1872 in the Book titled "The Contract Act, 1872, 2nd Edition/2011" by M. Mahmood, Advocate)

AND

C.M.A. NO. 5436 OF 2014 IN S.M.C. NO. 1 OF 2005

(Matter regarding missprinting of section 7(1)(e) and section 7(4)(d) and (e) of the Patent
Ordinance, 2000 in the Book titled "Manual of Intellectual Property Laws")

AND

C.M.A. NO.5869 OF 2014 IN S.M.C. NO. 1 OF 2005

(Matter regarding section 2(K)(i) of Punjab Consumer Protection Act, 2005 and Manual
of Consumer Protection Laws by Raja Nadeem Haider, Advocate Supreme Court Published by
Punjab Law House (Edition 2009))

C.M.As. Nos. 4343, 5436 and 5869 of 2014 in S.M.C. No.1 of 2005, decided on 10th February,
2015.

Constitution of Pakistan---
----Arts. 28, 184(3) & 251---Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss.9 &
13---Law books privately published and cited in court---Suo motu action taken up by the
Supreme Court upon noticing that a number of law books privately published and cited in court
contained glaring mistakes committed by authors and publishers in the text of the statutes---
Publishing/printing of incorrect sections of statutes in legal textbooks---Erroneous printing of
bare Acts---Non-availability of the laws of Pakistan in the form of a consolidated code---Federal
and Provincial laws not translated into the national language of Pakistan---Effect---Uncertainty
in the administration of justice---Loss to litigants---Lawlessness---Errors and mistakes in statutes
contained in legal textbooks were misleading the legal practitioners and judges and were creating
uncertainty in the administration of law---No law existed on the statute book which would
impose a civil and/or criminal liability on publishers, authors etc. responsible for publishing law
books with such errors---Copyright in the laws was vested in the Government which had made
such laws---Books published in print and available for sale in the country were authored and
published incorporating the statutes of the Federation and the provinces, but without the
permission of the concerned government, being the owners of the copyright---Governments had
to rectify such situation, if necessary, by enforcing their copyrights or by legislation so that
publishers of law books could be dealt with and penalized if they published erroneous books---
Making the applicable laws readily available to the public was a responsibility of the State---
Discharging such responsibility was one of the primary functions of the Federal and Provincial
Law Departments---No official publication existed either in hard form or on the internet which
could provide an accurate and error free version of the laws of Pakistan in one easily accessible
compendium---No easy and user-friendly means were available to the people of Pakistan to
enable them to find out what the statute book contained---Neither the Bar Councils nor the
Federal or Provincial governments had shown any seriousness of intent in addressing the present
issue---Present state of affairs had serious consequences for State governance and for judicial
adjudication of cases, and it adversely effected the rights of the people of Pakistan and
contributed towards the perpetuation and spread of lawlessness in the country---Where
applicable laws were not available, there could be little expectation or likelihood that the law
would be abided by---Federal Government had a very effective system for compiling the
Pakistan Code till the year 1966 when the last compendium of Federal laws was published in a
proper and user friendly form containing a chronological as well as alphabetical index of the
laws on the federal statute book which included the amendments made from time to time so that
any lawyer, judge, researcher or man on the street could ascertain the state of the law applicable
in the country---Such manner of publishing the Pakistan Code had been discontinued since the
year 1966 without explanation---Neither the Provinces nor the Federation had undertaken the
exercise of codifying the subordinate legislation made pursuant to rule-making powers given to
the respective executives by legislation and nor was there any codification of notifications or
other statutory instruments---First and foremost obligation of the government in any civilized
system of government was to make sure that all applicable laws were made easily available to
citizens in easily understandable language, therefore, it was a matter of great concern that the
laws of Pakistan, whether Federal or Provincial, had not been translated into the national
language which was a requirement of Art.251 of the Constitution or publicized in
provincial/local languages if considered appropriate, in line with the constitutional provision in
Art. 28 of the Constitution---Supreme Court directed that the complete Pakistan Code ('the
Code') shall be compiled and displayed on the website of the Federal Law Ministry; that bound
hard copies of the Code shall be made available for sale throughout the country so as to be easily
accessible to the public at inexpensive prices; that an alphabetical consolidated word index
containing the words in the title of a statute and words defined in the provisions of a statute
containing definitions shall be included in the alphabetical index; that as a sample of the required
consolidated word index, the consolidated index appearing at the end of volume 16 of the
Pakistan Code published by the Manager of Publications, Government of Pakistan, Karachi
(1968) may be used as a rudimentary sample; that improvements in said sample must be made by
use of technology and by benefiting from the Codes published by common law jurisdictions in
the subcontinent and elsewhere; that the Code shall include in foot-notes, particulars of
amendments made from time to time in the various statutes published in the Code; that marginal
notes shall be made to cross reference the provisions of one statute with related provisions in
another statute; that the sample of the Pakistan Code published by the Manager of Publications
(1968) may be adapted and improved; that translation (of the Code) into the national language
shall be completed and displayed in easily understandable form at inexpensive prices; that
translations of the Code into provincial/vernacular languages where deemed appropriate by
provinces shall be made by the Provinces; that subordinate legislation in the form of rules and
regulations framed under statutory powers shall be compiled in the form of a Code, containing a
consolidated word index; that a compendium of all statutory orders and notifications shall be
compiled and shall be made available to the public at inexpensive prices; that a legislative and/or
administrative regime shall be prepared with effective enforcement and prosecution mechanisms
to ensure that law publications for sale to the public were error free and, where applicable, had
the permission of the Government owning copyrighted material, and that the Provinces shall
follow the same pattern of publication of soft and hard copies of laws, rules and notifications as
had been ordered for the Federation--- Order accordingly.

The Contract Act, 1872, 2nd Ediction/2011" by M. Mahmood, Advocate; The Code of
Criminal Procedure, 1898 by M. Mahmood (Edn. 2005); Code of Criminal Procedure, Bare Act,
by S.A. Abid (Edn. 2012) and Code (India Code ) <http://indiacode.nic.in/> ref.

Kh. Ahmed Hussain, DAG with Muhammad Raza Khan, Secretary M/o Law on Court's
Notice.

Muhammad Farid Dogar, AAG with Safdar Hussain Secretary Law for Government of
Balochistan.

Abdul Latif Yousafzai, AG and Muhammad Aarfin, Secretary Law for Government of
Khyber Pakhtunkhwa.

Mudassar Khalid Abbasi, AAG with Mohsin Abbas Syed, Additional Secretary/Director
(Law and PA) for Government of Punjab.

Muhammad Qasim Mirjat, Additional AG and Mir Muhammad Sheikh, Secretary Law
for Government of Sindh.

Nemo for Pakistan Bar Council.

Nemo for Punjab Bar Council.

 Nemo for Khayber Pakhtunkhwa Bar Council.

Nemo for Respondents (in C.M.As. Nos.4343 and 5436 of 2014).

Muttaqi Raza, Manager for Respondents (in C.M.A. No.5869 of 2014).

Date of hearing: 28th January, 2015.

JUDGMENT

JAWWAD S. KHAWAJA, J.---The present case highlights a serious issue viz. the non
availability, whether on an official website or in hard form, of the laws of Pakistan in the form of
a consolidated code. Making the applicable laws readily available to the public is a responsibility
of the State about which there can be no two opinions. Discharging this responsibility is one of
the primary functions of the Federal and Provincial Law Departments, a function which they did
perform in the past, as we will discuss later in this opinion. Yet, now, it appears as if through
deliberate effort the law has been shrouded in a cloak of secrecy. Regardless of whether this state
of affairs has arisen on account of a glaring omission or a deliberate act, it has serious
consequences for State governance and for judicial adjudication of cases. It adversely effects the
rights of the people of Pakistan and contributes towards the perpetuation and spread of
lawlessness in the country.

2. Initially Suo Motu Case ('SMC') No.4 of 2004, SMC Nos. 1, 2, 6 and 7 of 2007 and SMC
No. 17 of 2007 were taken up when it was noticed that a number of law books privately
published and cited in court contained glaring mistakes committed by authors and publishers in
the text of the statutes. Even bare Acts of statutes were erroneously printed. These cases received
the attention of the Court and notices were issued to the Bar Councils as well as to certain
authors and publishers of books containing errors. The aforesaid suo motu cases were disposed
of on 9-5-2013 in the following terms:--

"Iftikhar Muhammad Chaudhry, C.J.---In these cases, notices have been served in respect
of the glaring mistakes committed by the authors and publishers in bare acts and law books. It is
pointed out that the matter has already been referred to the respective Bar Councils to look into
the matter. Since the matter relates to the printing of the law books, etc. therefore, the respective
Bar Councils within their permissible jurisdiction under the Legal Practitioners and Bar Council
Act, 1973, shall be free to take action if such material is provided to them, therefore, the above-
said petitions are disposed of."

3. It is apparent from the discussion which follows that the Bar Councils or even the Federal
and Provincial Governments did not attend to the important legal issues mentioned above
because no action whatsoever appears to have been taken since the disposal of the above noted
cases on 9-5-2013. It was on 25-2-2014 while hearing a case (C.P. No.102 of 2014) it came to
our notice that a vital omission had been made in section 23 of the Contract Act published by Al
Qanun Publishers and authored by Mr. M. Mehmood Advocate. We may add that the potential
financial impact of this case and an erroneous adjudication based on the aforesaid publication
would have run into billions of rupees.

4. We, therefore, directed the Librarian of this court to examine the issue and submit a
report. He has done so, whereafter the case was ordered to be put up in court. It was pointed out
by the Court Librarian that the issue of gross negligence in the publication of law books had been
dealt with in the earlier cases noted above. Notices, therefore, were issued to the various Bar
Councils and also to the Federal and provincial governments. When the governments entered
appearance, it was disconcerting to note that they had not undertaken any measures to address
the dire situation and nor had the Bar Councils done so despite the order dated 9-5-2013,
reproduced above. We had in particular noted that the Bar Councils were supposed to look into
this matter which seriously undermines the administration of justice and results potentially in
immense loss to litigants. On 24-10-2014, therefore, we once again issued notices to the five Bar
Councils as well as the Federal and provincial law departments. On 19-11-2014, we also asked
the learned Attorney General to inform us if there is any effective mechanism or legislation in
place to ensure that the publication of law books is properly regulated. He was also asked to
ascertain if there was any law which would impose a civil and/or criminal liability on publishers,
authors etc. responsible for publishing law books with such errors. It appears that there is no law
on the statute book because none was cited before us. The learned Attorney General, however,
stated that according to his information the entire statute book of the Country in the form of the
Pakistan Code was available on the website of the law department, but on 19-11-2014 he sought
time to confirm if this indeed was so.

5. Even today and as reflected in the orders passed on the previous dates of hearing, it
appears that there is in effect, no serious interest evinced in the matter by the concerned
authorities. Neither the Bar Councils (who have since the past few dates of hearing stopped
appearing in this case) nor the Federal or provincial governments have shown any seriousness of
intent in addressing what clearly is a major issue. We find it to be quite extraordinary that there
is in fact no official publication whether in hard form or on the internet which can provide an
accurate and error free version of the laws of Pakistan in one easily accessible compendium. As
such there are no easy and user-friendly means available to the people of Pakistan to enable them
to find out what the statute book contains. The abysmal state of affairs was amply demonstrated
in a few hearings of this case, firstly, when it was found out by our research staff sitting in Court
that when they tried to access the website of the Ministry of Law it was unavailable because of
shutdown; secondly, when the Pakistan Constitution was not easily accessible on the website of
the Ministry of Law, it could conveniently be accessed through the website of the Library of the
United States Congress in Washington. Even today when our research staff attempted to access
the website of the Federal Ministry of Law, Justice and Human Rights, although the main page
of the website opened, but the link namely "Laws" was not accessible and the caption appeared
that "This web page has a redirect loop", but the user was not redirected anywhere nor provided
any further information about how to gain access.

6. Furthermore, during the hearing of one of the cases in Court on 27-1-2015 we had
observed that different versions were available regarding section 420 of the Pakistan Penal Code,
1860 being bailable or not. "The Code of Criminal Procedure, 1898" by M. Mahmood (Edition
2005) stated the offence was bailable. On the other hand the "Code of Criminal Procedure, Bare
Act", by S.A. Abid (Edition 2012) described it as not-bailable. Such glaring errors and mistakes
are obviously misleading legal practitioners and judges too and are creating uncertainty in the
administration of law. It should be obvious that the non-availability of an easily accessible
official version of the Pakistan Code is principally responsible for contributing to this
Kafkaesque situation.

7. We are dismayed to note that even the website of the Ministry of Law is grossly
inadequate and no effort or initiative has been taken to bring it up to date. It is only when this
matter was taken up by this Court and the governments and their law departments were reminded
of their duties and obligations that there was some movement to rectify the matter. One fact
apparent from the hearings in this case is that the Federal Government had a very effective
system for compiling the Pakistan Code till 1966 when the last compendium comprising of 16
volumes of Federal laws was published in a proper and user friendly form containing a
chronological as well as alphabetical index of the laws on the federal statute book which
included the amendments made from time to time so that any lawyer, judge, researcher or man
on the street could ascertain the state of the law applicable in the country.

8. On 8-1-2015, we were informed by our Librarian and later also by the learned DAG, that
the last official publication is a book titled "Pakistan Code" which has been published by the
Manager of Publication, Government of Pakistan, Karachi in the year 2010. A cursory
examination of said book shows that it is not the statute book in the form of a Code and is
unhelpful because whilst it has a chronological index of statutes most of these have not been
printed in the said book, secondly, there is no alphabetical index as was the norm until the
publication of the Pakistan Code in proper format was discontinued after 1966, thirdly, there are
no marginal notes or cross referencing of a statute to provisions in another connected statute and,
fourthly, there are no foot-notes mentioning the amendments made from time to time. Therefore,
the said book mentioned by the DAG does not constitute the Pakistan Code. It has not been
explained to us why the manner in which the Pakistan Code was published until 1966 was
discontinued.

9. The provinces also appeared to be in a similar state of disarray. This was not always so.
In Sindh there used to be a publication known as the Sindh Code but the last printing of the
Sindh Code occurred in 1956, thereafter and till the present day, there is no compendium of the
provincial laws in Sindh in the form of the Sindh Code. In Balochistan, there was a publication
by the provincial law ministry which purported to contain the laws of the province last published
in 1990, but the said publication is also not helpful as it does not contain an alphabetical index as
was done in the Pakistan Code until 1966. In Khyber Pakhtunkhwa we were informed that the
provincial code had been published until 1988 and thereafter the laws of 2013 and 2014 had been
published in two volumes and that the gap years (1988 to 2013) will be filled by working
backwards from 2013. It is not clear whether such publication will contain an alphabetical index,
which as stated above is the most effective and utilitarian feature of any statutory compendium.
The Punjab province appears to be ahead of the other three provinces and the Federation because
it has brought the Punjab Code up to date although the Additional Secretary of the Punjab Law
Ministry has acknowledged that the Code contains errors and omissions which are in the process
of being rectified.
10. Neither the Provinces nor the Federation have undertaken the exercise of codifying the
subordinate legislation made pursuant to rule-making powers given to the respective executives
by legislation and nor is there any codification of notifications or other statutory instruments. At
present only the Punjab Government appears to have in mind a second phase of its Code which
will comprise of subordinate legislation and a third phase which will comprise of notifications
and statutory orders. The Federation and the Provinces claimed to have the laws of the
Federation and Provinces respectively on their websites. We, however, note that what is
displayed on the respective websites is not a Code. The Pakistan Code which was modified up to
31st December, 1967 and published by the Manager of Publications, Government of Pakistan
provides the template of a Code. It can be very substantially improved and made user friendly by
use of the latest technology. It is clear that none of the online publications mentioned by the Law
Officers of the Federation and Provinces can be considered the same as a Code.

11. On 8-1-2015, we were constrained to direct the law secretaries of the Federation and the
four provinces to make sure that at least the statute book is made available both in hard form and
on the website of the law departments of the Federation and the four provinces. We had noted in
our order of the said date that the situation represented by this case is alarming and could be one
of the contributory causes of the lawlessness which prevails in the country today. It is obvious
that where applicable laws are not available, there can be little expectation or likelihood that the
law will be abided by.

12. At this juncture, it is important to bear in mind that copyright in the laws is vested in the
governments which have made such laws. This is also reflected in the Rules of Business of the
Federal and the provincial governments made under the Constitution. It, however, appears that
the books published in print and available for sale in the country are authored and published
incorporating the statutes of the Federation and the provinces, but without the permission of the
concerned government, being the owners of the copyright. In view of the distressing situation
which is reflected from the above narrative, it is for the governments to rectify the situation, if
necessary, by enforcing their copyrights or by legislation so that publishers of law books can be
dealt with and penalized if they publish erroneous books.

13. Here it is also important to emphasize that in any civilized system of government, the
first and foremost obligation of the government is to make sure that all applicable laws are made
easily available to citizens in easily understandable language. It was, therefore, a matter of great
concern to us that the laws, whether Federal or Provincial, had not been translated into the
national language which is a requirement of Article 251 of the Constitution or publicized in
provincial/ local languages if considered appropriate, in line with the constitutional provision in
Article 28 of the Constitution. Section 78 of the Stamp Act 1899 enacted in the pre-independence
period provided that, "every Provincial Government shall make provision for the sale of
translations of this Act in the principal vernacular languages of the territories administered by it
at a price not exceeding twenty five paisa per copy". If the colonial dispensation could be
sensitive to the need for dissemination of laws through inexpensive translations, we do not see
why this is not being done post Independence.

14. Because of the inadequacy of the functioning of the Federal and provincial law
departments, we gave extensive hearing to this case on 19th, 21st and 22nd of January, 2015. In
view of the lack of assistance received by us from the concerned Government functionaries, we
were constrained to direct the Federal and provincial law secretaries to appear and to let us know
why the laws of the Federation and the provinces had not been made available to the people of
Pakistan as was the norm in the Federal Law Ministry till 1966 and in the provinces. There being
no explanation forthcoming, the five law secretaries were asked to submit reports setting out
targets to be met by the five governments and timelines within which such targets are to be met.
Reports were submitted by the governments from which it appears that the governments of
Sindh, Balochistan and the Federation are not currently equipped with or in a position to publish
whether online or in hard form their respective law codes. As noted earlier, only the Punjab
Government appears to have made some progress and has published on the official government
website, the statutes applicable in the Province in the form of a Code. The progress and direction
of the KPK Government also indicates that a Code of all laws applicable in the Province may
become available in the near future.

15. In view of the fact that the five governments were unable to give any satisfactory
explanation for their glaring omissions which have far reaching consequences, we directed our
own research staff to examine the state of affairs in India, Bangladesh and in the United
Kingdom. In India there is a complete chronological and alphabetical index both in English and
in Hindi and all laws are available in both the said languages on the internet ('Indian Code' (India
Code ) <http://indiacode.nic.in/> accessed 28/01/2015) and in printed book form. In addition the
'Free Text Search' on the web page can be used by typing in any word(s) and all laws containing
the said word(s) are shown. This enables any citizen, lawyer, judge or researcher to have
immediate and easy access to the laws applicable in the country. Similarly each of the provinces
(known as States in India) have their own websites which publish the applicable laws in easily
accessible ways. Bangladesh also has the Bangladesh Code in Bengali and in English with
chronological and alphabetical indices. As for the United Kingdom, there is a complete website
for UK and Scottish legislation.

16. Samples from the extracts of the above were printed and paper books of the same were
supplied by the Court to the law secretaries of the five governments and their law officers. We
are constrained to emphasize that this extensive exercise which had been undertaken by the
Court was in fact the responsibility of the governments and only because the governments had
failed to fulfil this duty the Court had to expend its own resources for this purpose. We may
mention that it did not take long for our young and relatively inexperienced (for this task)
researchers to produce their output. Based on the current situation, we are not satisfied that the
five Governments will have the willingness and/or the capacity to undertake the relatively simply
exercise of preparing the Pakistan Code and the Provincial Codes in the form of one consolidated
compendium of laws in hard and in soft form.

17. Therefore, after hearing the Law Officers and the Law Secretaries of the five
Governments and taking into account the reports which have been submitted on behalf of the
respective Governments in the present matter, we direct and order as under:--

(i) The complete Pakistan Code ('the Code') shall be compiled and displayed on the website
of the Federal Law Ministry.
(ii) Bound hard copies of the Code shall be made available for sale throughout the country
so as to be easily accessible to the public, at inexpensive prices.

(iii) An alphabetical consolidated word index containing the words in the title of a statute and
words defined in the provisions of a statute containing definitions shall be included in the
alphabetical index.

(iv) As a sample of the required consolidated word index, the consolidated index appearing at
the end of volume 16 of the Pakistan Code published by the Manager of Publications,
Government of Pakistan, Karachi (1968) may be used as a rudimentary sample. Improvements in
the sample must be made by use of technology and by benefiting from the Codes published by
common law jurisdictions in the subcontinent and elsewhere.

(v) The Code shall include in foot-notes, particulars of amendments made from time to time
in the various statutes published in the Code.

(vi) Marginal notes shall be made to cross reference the provisions of one statute with related
provisions in another statute. The sample of the Pakistan Code published by the Manager of
Publications (1968) may be adapted and improved.

(vii) Translation into the national language shall be completed and displayed in easily
understandable form at inexpensive prices.

(viii) Translations of the Code into provincial/vernacular languages where deemed appropriate
by provinces shall be made by the Provinces.

(ix) Subordinate legislation in the form of rules and regulations framed under statutory
powers shall be compiled in the form of a Code. This shall also contain a consolidated word
index.

(x) A compendium of all statutory orders and notifications shall be compiled and shall be
made available to the public at inexpensive prices.

(xi) A legislative and/or administrative regime shall be prepared with effective enforcement
and prosecution mechanisms to ensure that law publications for sale to the public are error free
and, where applicable, have the permission of the Government owning copyrighted material.

(xii) The Provinces shall follow the same pattern of publication of soft and hard copies of
laws, rules and notifications as has been ordered for the Federation.

18. The matter shall now be listed for hearing on 17-2-2015 on which date the five
Governments shall come prepared so that the Court can settle timelines within which each of the
directives and orders in the preceding paragraph shall be complied with. A copy of this judgment
shall be sent to the five Governments through their Chief Executives and Law Secretaries. A
copy shall also be sent to the Secretary of the Law and Justice Commission (LJCP) with notice
for 17-2-2015 so that within the mandate of the LJCP under the Law Commission Ordinance,
1979, it can monitor the work being done by the five Governments and ensure that the quality
and usefulness of the publications to be made as ordered above, are best suited for the public
need.

(Sd.)
Jawwad S. Khawaja, J

(Sd.)
Ejaz Afzal Khan, J)

(Sd.)
Qazi Faez Isa, J

MWA/M-12/S Order accordingly.

2015 S C M R 810

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Ejaz Afzal Khan and Maqbool Baqar, JJ

Syed MAHMOOD AKHTAR NAQVI---Applicant

versus

GOVERNMENT OF SINDH and others---Respondents

C.M.A. No.592-K of 2013 in S.M.C. No.16 of 2011, C.M.A. No.423-K of 2014,

Criminal O. P. 24-K of 2014, C.M.A. No.634-K of 2014, C.M.A. No.359-K of 2014, Criminal
O. P. Nos.25-K and 26-K of 2014, C.M.A. No.360-K, 373-K, 382-K, 389-K and 394-K of 2014,
decided on 26th March, 2015.

((For taking action against the Government of Sindh through IGP, Sindh on entering into
contract for purchase of the APC Armed Personnel Carrier at an exorbitant rate without calling
open tender in deviation of Sindh Public Procurement Rules)

Supreme Court Rules, 1980---

----O. IV, Rr. 6, 15 & 30---Advocate Supreme Court---Misconduct---Conduct unbecoming of an

advocate---Appearance in a case without instructions or 'vakalatnama' of an Advocate-on-Record
(AOR)---Interrupting court proceedings---Using loud and unbecoming tone in court---
Suspension of practicing licence as an advocate of Supreme Court and notice to show cause as to
why he should not be removed from practice as an Advocate of the Supreme Court---No
authorization existed in favour of the Advocate Supreme Court in question, authorizing him to
appear in the present case, and nor was there any 'vakalatnama' of an Advocate-on-Record
(AOR) on behalf of the Provincial Inspector General of Police, whom the advocate in question
was purportedly representing---Advocate in question had been appearing in the present case for
the last twelve dates of hearing, and considering that he had no authorization from any Advocate
on Record, it was apparent that O. IV, R. 6 of the Supreme Court Rules, 1980 had been
violated---Instead of acknowledging such shortcoming, advocate in question conducted himself
in a manner which indicated that he had been guilty of misconduct and conduct which was
unbecoming of an advocate---Advocate in question was asked to submit an explanation as to
how without instructions or vakalatnama of an Advocate-on-Record (AOR), he had been
appearing in the present case, but instead of submitting his explanation, he raised his voice,
interrupted court proceedings and launched into a harangue and tirade---Such sort of behaviour
was not conducive to the proper administration of justice and was also prohibited by the Legal
Practitioners and Bar Councils Act, 1973---Persistent objectionable behaviour of advocate in
question provided good cause for taking strict action against him---Record of certain other cases
showed that advocate in question had made it a habit to indulge in misconduct or conduct
unbecoming of an advocate---Persistent acts on the part of advocate in question displayed a
pattern and a mindset which was not at all conducive to the honour and dignity of the Court and
the Bar---Fair, honest and ethical Bar was essential for dispensation of justice---Supreme Court
observed that it had shown a lot of patience in dealing with the advocate in question but he had
failed to uphold and maintain the dignity of his profession or the Court---Supreme Court thus
suspended the practicing license of advocate in question in order to maintain the honour, respect
and dignity of the Bar and the Court, and issued him a notice to show cause as to why he should
not be removed from practice as an Advocate of the Supreme Court---Supreme Court directed
the Provincial Inspector General of Police, to file copies of all relevant documents showing
deliberations and justification for engaging a private counsel (advocate in question) and paying a
large sum to him as professional fee instead of defending through the office of the Provincial
Advocate General.

Ch. Muhammad Ashraf Gujjar v. Riaz Hussain 2013 SCMR 161; Bank of Punjab v.
Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109; Arslan Iftikhar v. Riaz Hussain PLD 2012
SC 903 and Hamid Mir v. Federation of Pakistan Constitutional Petition No.105 of 2012 ref.

Nemo for Applicant.

Irfan Qadir, Advocate Supreme Court on Court's Notice.

Meeran Muhammad Shah, Additional, A.-G. Sindh for Government of Sindh.

Farooq H. Naek, Senior Advocate Supreme Court for Chief Secretary.

Ghulam Haider Jamali, IGP and Dr. Mazhar Ali Shah, AIG (Legal) on behalf of IGP,
Sindh.

Nemo for HIT.

Date of hearing: 26th March, 2015.

ORDER

JAWWAD S. KHAWAJA, J.---When this case was called, we adverted to our previous
order dated 12-3-2015. In that order we have noted the fact that there was no authorization in
favour of Mr. Irfan Qadir authorizing him to appear in the case and nor was there any
"vakalatnama" of an AOR on record on behalf of IGP Sindh. We can advert to our previous
order wherein we had raised the query and asked the learned Additional Advocate General Sindh
to inform us as to how and under what arrangement Mr. Irfan Qadir was representing the IGP
Sindh. In our order, it has also been noted that Mr. Irfan Qadir had been appearing in this case
for the last 12 dates of hearing. Considering that he has no authorization from any Advocate on
Record, it is apparent that Rule 6 of Order IV of the Supreme Court Rules, 1980 has been
violated. The said Rule stipulates that "no Advocate other than an Advocate-on-Record shall
appear or plead in any matter unless he is instructed by an Advocate-on-Record". Rule 15 of the
said Order directs that "no Advocate other than an Advocate-on-Record shall be entitled to act
for a party in any proceedings in the Court". Instead of acknowledging this shortcoming, Mr.
Irfan Qadir conducted himself in a manner (discussed below) which indicates that he has been
guilty of misconduct and conduct which is unbecoming of an Advocate. Through an earlier order
we had provided an opportunity to Mr. Qadir to explain his position but he has chosen not to do
so.

2. On 11-3-2015 we were constrained to note that when we commenced hearing of the case,
"Mr. Irfan Qadir, Advocate Supreme Court purported to represent IGP, Sindh". When he was
questioned as to whether Sindh Police was an entity recognized under Article 137 of the
Constitution or the Rules of the Business of the Sindh Government under Article 139, instead of
addressing the question, he raised his voice and starting saying loudly that he would not argue
before this Bench. We were, therefore, compelled to note that this sort of behaviour is not
conducive to the proper administration of justice and is also prohibited by the Legal Practitioners
and Bar Councils Act, 1973. It is quite apparent that the conduct displayed by Mr. Irfan Qadir is
also violative of Order IV, Rule 30 of the Supreme Court Rules. Mr. Irfan Qadir stated as noted
above, that he would not be arguing this matter before the Court. Despite this he once again
interrupted Court proceedings today and launched into a harangue and tirade which has been
recorded and the Office has been directed to prepare a transcript of the recording and place it on
record. The persistent objectionable behaviour of Mr. Irfan Qadir provides good cause for taking
strict action against him however, for the sake of ensuring fairness we had also given him notices
to explain his conduct which, as noted above, he has not availed. This was quite sufficient to
justify issuance of a notice to Mr. Irfan Qadir under Order IV, Rule 30 of the Supreme Court
Rules. The loud and unbecoming tone of his uncalled for and irrelevant interruptions can only be
gathered from the audio recording. The Office shall save such recording as a part of the record.

3. Our staff have traced the record of some other cases from which it is apparent that Mr.
Irfan Qadir may have been guilty of misconduct or conduct which is unbecoming of an
Advocate. The first such case is of Ch. Muhammad Ashraf Gujjar v. Riaz Hussain (2013 SCMR
161). In the cited case, it has been held at the very outset that a query was made from the
Attorney General [Mr. Irfan Qadir] as to "whether it would be possible for him to conduct the
proceedings of this case, fairly, justly, honestly and in accordance with law when he at some
stage remained counsel for the respondent [contemnor]". The reply of Mr. Irfan Qadir was that
"inspite of that [he] would be able to conduct the prosecution of this case fairly, justly, honestly
and in accordance with law". When the Court suggested that propriety demands that he should
lay his hands off this case, Mr. Irfan Qadir replied by saying that "when he was on the Bench as
a Judge of the Lahore High Court, he declined to hear one of the cases of the respondent on the
said score but since the Attorney General being persona designata, is alone to conduct the
proceedings in such matters, the fact that he at some stage remained counsel of the respondent
can conveniently be ignored". The Court also had occasion to comment on the evident
misconduct of Mr. Irfan Qadir as Attorney General by observing as to "how the Chief Justice of
Pakistan could figure as a witness in the list of witnesses submitted by the Attorney General
when he neither filed a complaint in his individual capacity nor submitted an affidavit". It was
also noted by the Court that "even if it were so, the Chief Justice could not have been examined
as a witness in view of the proviso to section 17 of the Contempt of Court Ordinance,
notwithstanding the desire of the contemnor to cross examine him". Thereafter a very significant
finding was recorded that Mr. Irfan Qadir as Attorney General was "acting more as a defence
counsel than a prosecutor. ... His concerns, as far as it can be gathered from his conduct in the
Court, aim at turning the table on the Court rather than preserving its dignity". It was also
observed that "his partial and partisan attitude with pronounced leaning towards the respondent
cannot be conveniently ignored". The partiality of Mr. Irfan Qadir as Attorney General as
Prosecutor was duly noted and it was observed that such partiality was "patent on the face of the
steps he has taken thus far during the proceedings".

4. The next case which has been traced by our research and office staff is that of Bank of
Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109). In the cited case a three
Member Bench of this Court noted that the Judges "were ... bemused rather shocked, at the
grievance rather vociferously raised, not by the accused persons of this case but by the learned
Prosecutor General Accountability, Mr. Irfan Qadir that the ... intervention by this Court in the
investigation of the case in question, was an illegal and an unconstitutional interference by it
which was likely to cause prejudice to the cause of the accused persons". It was also noted in the
cited case that Mr. Irfan Qadir "admitted that he had been a counsel for the accused persons ...
and that the said case was presently under investigation with none other than the NAB itself with
Ministry of Law as their Administrative Ministry and with him [Irfan Qadir] as its Prosecutor
General". The submission of Mr. Irfan Qadir was noted that "he was the one who had filed all the
cases on behalf of the accused persons of the said fraud case in the Lahore High Court and even
in this [Supreme] Court". The Court also recorded in the judgment that "he [Irfan Qadir] was the
one who had engaged some other senior Advocates also to represent the said accused persons in
the High Court and in this Court at that time not because he wanted so to do but because the said
accused persons had desired that he should also associate some senior Advocates with him who
enjoyed influence with the Judges of the High Courts and of the Supreme Court and that it was in
deference to the said desire of his said clients that he had engaged Syed Sharifuddin Pirzada, Mr.
Waseem Sajjad and Mr. Babar Awan, Advocates to represent the said accused persons in the said
cases. He, however, denied the allegation that he had taken any money from his said clients for
any collateral purposes or that he had misappropriated any part of any money given to him by his
said clients for onward payment to the said learned Advocates". To put it mildly, this type of
conduct brings the noble profession of lawyers into disrepute and undermines honour, prestige
and dignity of the two institutions of the Bar and the Courts.
5. There is yet another case reported as Arsalan Iftikhar v. Riaz Hussain (PLD 2012 SC
903). A number of instances showing Mr. Irfan Qadir as being prima facie, guilty of misconduct
or conduct unbecoming of an Advocate are evident. The first 10 paragraphs of the cited
judgment which highlight such conduct are being reproduced to the extent relevant, for ease of
reference:--

"...

(2) Our judgment dated 14-6-2012 had been passed after considering the concise statements
submitted by the parties and after hearing their learned counsel. The relevant part of our
judgment on which the hearing of this petition is mainly focused is para 22 which, for ease of
reference, is reproduced as under:-

"While this suo motu action has been brought to an end in view of the material
considered above, [Mr. Irfan Qadir] the learned Attorney General who has assisted us in this case
is fully abreast of all aspects of this case. It is our expectation that he will set the machinery of
the State in motion so that all those who may have committed any illegal acts, including Malik
Riaz Hussain, Dr. Arsalan, Salman Ali Khan etc. are pursued and brought to book with the full
force and rigour of the law".

(3) It has been brought to our notice through the present proceedings that [Mr. Irfan Qadir]
the Attorney General wrote a letter to the Chairman, NAB on 18-6-2012, purporting to be in
furtherance of para 22 our judgment of 14-6-2012. Learned counsel for the petitioner has taken
us through the said letter which was placed on record by the learned Deputy Attorney General.
According to learned counsel, instead of abiding by para 22 ibid [Mr. Irfan Qadir] the learned
Attorney General has transgressed the terms thereof and has exerted illegal and unwarranted
influence over NAB. The contents of the letter dated 18-6-2012 written by [Mr. Irfan Qadir] the
Attorney General will be considered shortly. It may be noted that the [Mr. Irfan Qadir] learned
Attorney General was not a contesting party in the case and was only assigned the limited
function, as an officer of the Court and as the principal law officer of the Federation, of setting
the machinery of State in motion.

(4) The main allegation levelled by the petitioner against [Mr. Irfan Qadir] the Attorney
General is that he acted in a partisan manner and influenced NAB to favour the respondent Malik
Riaz Hussain. To support his contention, learned counsel for the petitioner drew our attention to
Writ Petition No. 258 of 2007 which was filed in the Lahore High Court by nine petitioners
against a number of respondents including Malik Raiz Hussain who was arrayed as respondent
No. 7. The Writ Petition and other documents filed in the case have been placed on record. Mr.
Irfan Qadir (now Attorney General) represented Malik Riaz Hussain in the said Writ Petition. He
filed parawise comments and appeared in Court on various dates of hearing on behalf of Malik
Riaz. The learned DAG, upon being questioned, stated that as per his information, [Mr. Irfan
Qadir] the Attorney General did act as counsel for the respondent Malik Riaz Hussain in the said
Writ Petition. Learned counsel representing Malik Riaz Hussain interjected at this point and
contended that there was nothing wrong or improper if Mr. Irfan Qadir represented the
respondent as his client in the case. ...
(5) There is indeed no impropriety if an Advocate represents a client in any given case.
Learned counsel for the respondent is, however, missing the point of the petitioner's objection.
The objection is not to the fact that [Mr. Irfan Qadir] the Attorney General, in his private
professional capacity represented the respondent. The allegation being made is that neither
during the course of hearing of S.M.C. No.5 of 2012 nor when our judgment was announced in
Court on 14-6-2012 nor at any time thereafter [Mr. Irfan Qadir] the Attorney General disclosed
to the Court his association or professional relationship with the respondent. It is quite clear that
we would not have tasked [Mr. Irfan Qadir] the Attorney General with any responsibility in this
matter if he had made disclosure to us as to his professional association with the respondent
Malik Riaz Hussain. It is of concern to us that [Mr. Irfan Qadir] the learned Attorney General did
not make the requisite disclosure.

(6) Learned counsel for the petitioner contended that the above facts provide substantiation
in respect of a number of allegations which have been made against [Mr. Irfan Qadir] the
Attorney General in this petition and which were reiterated during the course of arguments. The
primary objection in this respect is that [Mr. Irfan Qadir] the learned Attorney General through
his letter of 18-6-2012 sent to NAB, went much beyond the scope of our order of 14-6-2012 and
this amounted to interference with and unlawful influence on the inquiry by NAB and also
constituted failure on his part, to abide by our order. ...

(7) ...

(8) The foregoing facts which are floating on the surface of this record provide prima facie
evidence that NAB may have wilted under the outside influence of [Mr. Irfan Qadir] the
Attorney General and may, therefore, not be in a position to conduct an impartial inquiry in the
matter. We may add that when we passed our order dated 14-6-2012, we had no reason to
believe that [Mr. Irfan Qadir] the Attorney General will go beyond the simple and limited act of
"setting the machinery of the State in motion". It is, therefore, disturbing to see that he chose to
write a letter in terms reproduced above thus overstepping the remit of our order.

(9) In addition to the above, the unusual conduct of [Mr. Irfan Qadir] the learned Attorney
General in these proceedings has previously been subject of comment by us. In our order dated
24-7-2012, we noted that Mr. Shafi Muhammad Chandio, learned DAG had undertaken on 17-7-
2012 that he will file in Court the letter sent by [Mr. Irfan Qadir] the learned Attorney General to
the Chairman, NAB. The DAG failed to file the same despite the lapse of several days. We also
noted that such failings impeded the administration of justice and could not be approved.
Expressing our disappointment, we had asked Mr. Chandio, learned DAG to appear and inform
us of the reasons, if any, for not abiding by his undertaking, but were informed that he was
unavailable. We, therefore, recorded in our order that we were "surprised and somewhat taken
aback when [Mr. Irfan Qadir] the learned Attorney General became agitated at this and made
remarks that the Court was taking undue interest in this case, implying that this was not
appropriate. In the same agitated state he also remarked that there were sensitivities to this case.
We are in particular surprised at the attitude of [Mr. Irfan Qadir] the learned Attorney General
because he was not present on the last date of hearing. Instead of putting his own office in order,
it is clear that he had not been briefed by the learned DAG in respect of what transpired at that
hearing". We had also commented that [Mr. Irfan Qadir] "the learned Attorney General may be
careful in maintaining the decorum of these proceedings being an officer of the Court in addition
to being the principal law officer of the Federation". Perhaps the above facts which have now
been brought to our attention, can help explain [Mr. Irfan Qadir] the Attorney General's unusual
conduct in the case.

(10) The effect prima facie, of the foregoing circumstances whether taken independently or
cumulatively is that there is a reasonable and well founded prima facie basis for the petitioner's
allegation that [Mr. Irfan Qadir] the Attorney General did not act fairly and impartially while
purporting to act in furtherance of para 22 ibid reproduced above. Since these are matters of
serious concern to us and also would be to [Mr. Irfan Qadir] the Attorney General as a member
of our bar, it would be in the interest of fairness and justice if he is provided an opportunity of
hearing to explain his conduct. The office shall, therefore, create a file and issue notice to [Mr.
Irfan Qadir] the Attorney General".

6. We are quite surprised that although we had directed Mr. Irfan Qadir as Attorney General
to "set the machinery of State in motion" against persons such as Malik Raiz Hussain, Dr.
Arslan, Salman Ali Khan etc. so that they are pursued and brought to book, Mr. Irfan Qadir
chose not to disclose to the Court that Malik Riaz Hussain had been his client and as such in Writ
Petition No. 258 of 2007, Mr. Irfan Qadir had represented Malik Raiz Hussain. It is because the
requisite disclosure of such relationship had not been made that the Court entrusted him with a
sensitive job. We duly noted that "we would not have tasked [Mr. Irfan Qadir] the Attorney
General with any responsibility in this matter if he had made disclosure to us as to his
professional association with the respondent Malik Riaz Hussain".

7. To date Mr. Irfan Qadir has chosen not to respond to the notice issued to him and to
explain the behaviour which, on the face of it, is unethical. We can, therefore, justifiably proceed
on the basis that he has no explanation to offer. This should particularly be of concern to both
Bar and Bench as any dispassionate and objective analysis of the situation will demonstrate that
such conduct cannot be conducive for an effective and fair justice system.

8. From the above instances, it is evident that Mr. Irfan Qadir has made it a habit to indulge
in misconduct or conduct unbecoming of an Advocate. In the interest of fairness and justice, we
had provided an opportunity of hearing to Mr. Irfan Qadir to explain his conduct. Although this
was done as far back as 28-8-2012, and once again on 12-3-2015 Mr. Irfan Qadir has chosen not
to give any explanation in writing or otherwise. From this we can only assume that he has in fact
no valid explanation to give.

9. In addition to the above, in the case of Hamid Mir v. Federation of Pakistan (PLD 2013
SC 244), we had passed an order wherein we noted as under:--

"[The petitioner] drew our attention to C.M.A. No. 4041 of 2012 which was submitted by
the Ministry of Information and Broadcasting. Page 2 of this CMA bears a heading
"Supplementary grants allocated to the M/o Information and Broadcasting for financial year
2011-12". The petitioner then adverted to the first column of table appearing under the above
heading and submitted that the original grant in the various heads described in the table was
Rs.4,080,076,000. This figure when written in words comes to Rupees four billion, eighty
million and seventy six thousand and when written in vernacular, the figure comes to Rs. 4 arab,
8 crore and 76 hazar. While the petitioner was addressing the Court, the Attorney General [Mr.
Irfan Qadir] interrupted the proceedings and has started contentious argument and a mindless
harangue as to the figure. We are surprised at this interjection when the figure being given by the
petitioner is absolutely in accordance with the table at page 2 of C.M.A. No.4041 of 2012
submitted by the Ministry of Information and Broadcasting itself.

(3) We repeatedly informed the Attorney General [Mr. Irfan Qadir] that this was not the way
in which cases are to be heard. And we also repeatedly asked him to take his seat. Instead of
doing so, he continued with his interruption and obstructed the Court proceedings. This is not
something which should be countenanced as it is not conducive to the administration of justice.
If such conduct is allowed to continue it will undermine the legal system. We are, therefore,
constrained to warn the Attorney General that he should not interrupt the arguments being
advanced by the other side and instead he should, in accordance with established norms and
practice expected from all members of our Bar, reserve his comments and address the Court on
his own turn".

We also noted that valuable time of the Court had been unnecessarily wasted and as a
consequence, the aforesaid warning had been given to Mr. Irfan Qadir as Attorney General.

10. The above are persistent acts on the part of Mr. Irfan Qadir which display a pattern and a
mindset which is not at all conducive to the honour and dignity of the Court and the Bar. A fair,
honest and ethical Bar is essential for dispensation of justice. The Court has shown a lot of
patience in dealing with Mr. Irfan Qadir but he has failed to uphold and maintain the dignity of
his profession or the Court. Therefore, in order to maintain the honour, respect and dignity of the
Bar and the Court, we find ourselves compelled to suspend the practicing license of Mr. Irfan
Qadir as an Advocate of this Court and he is also given notice to show cause as to why he should
not be removed from practice as an Advocate of this Court.

11. We can now take up the case at hand. The Inspector General of Police, Sindh is in
attendance pursuant to our previous order dated 12-3-2015. He has submitted a report (C.M.A.
1445 of 2015). However, still we require additional information as to the deliberations, if any,
which may have taken place to justify hiring of Advocates other than the Advocate General and
law officers from his office. We have also not been able to ascertain from the IGP or from his
report as to the amount which was paid as professional fee. Upon being questioned, the IGP has
stated that a total sum of Rs.30 lakhs was agreed to be paid to Mr. Irfan Qadir out of which a
sum of Rs.20 lakhs has already been paid while the remaining Rs.10 lakhs is outstanding and
payable. The Government of Sindh and IGP Sindh shall file copies of all relevant documents
showing deliberations and justification for engaging counsel other than from the office of
Advocate General Sindh. The case shall be listed for hearing in the 2nd week of April, 2015. On
the last date of hearing Mr. Farooq Naek had candidly conceded that the Agreement dated 15-3-
2013 was not in accordance with the provisions of the Constitution or the Sindh Rules of
Business. Consequently, the Agreement was declared to be null and void.
12. Today C.M.As. Nos. 423-K and 394-K of 2014 have also been listed for hearing relating
to acquisition of Fire Tenders and one helicopter by the Sindh Government. At the request of Mr.
Farooq H. Naek, Senior Advocate Supreme Court, these two C.M.As. shall be delinked from the
main case and shall be listed for hearing after 30 days as requested by him.

MWA/M-16/SC Order accordingly.

2015 S C M R 882

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Iqbal Hameedur Rahman, JJ

C.M.A. NO. 3854 OF 2014 IN SUO MOTU CASE NO.3 OF 2009: In the matter of

C.M.A. No. 3854 of 2014 in SMC No. 3 of 2009

(Implementation of the order dated 5-6-2013 passed in SMC 3

of 2009)

AND

C.M.A. No.4341 of 2014 in C.M.A. No. 3854 of 2014

in SMC No.3 of 2009

(Concise statement on behalf of respondent-Bahria Town)

C.M.A. No.3854 of 2014 in SMC No.3 of 2009, C.M.A. No. 4341 of 2014 in C.M.A. No.3854 of
2014 in SMC No.3 of 2009, decided on 31st March, 2015.

(a) Supreme Court Rules, 1980---

----O. IV---General adjournment---Intimation of general adjournment by Advocate to the

Supreme Court---Practice and procedure---Courtesy was always extended to the members of the
Bar, however, it was always for the party or the Advocate Supreme Court to ensure presence of
the Advocate-on-Record (AOR) at the hearing and it was for the Advocate-on-Record to inform
the court that the counsel was on adjournment or at the very least to file an application giving
intimation of the general adjournment.

(b) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Ch. XII & R. 134---Supreme Court Rules, 1980, O. IV---Constitution of Pakistan, Art.
184(3)---Suo motu case before the Supreme Court---Apprehension of bias of Judge by the
party---Filing of application by a corporate entity---Scope---One of parties to the case, which
was a corporate entity, filed an application before the Chief Justice of the Supreme Court
outlining that one of the Judges of the Supreme Court hearing the present case had already made
up his mind regarding certain aspects of the case---Validity---Party which had filed the said
application was merely a corporate entity and it had no mind of its own and could have no
apprehension of its own---Corporate entity only acted through natural persons such as its
directors, chief executive etc., therefore the counsel representing the corporate entity had to
explain to the court as to who had the apprehension and on what basis---Prima facie, there
appeared to be some significant breaches of the Supreme Court Rules, 1980, and of the Code of
Conduct prescribed for Advocates under the Legal Practitioners and Bar Councils Act, 1973 in
the present case---Such apparent violations included violation by an Advocate "to uphold at all
times the dignity and high standing of his profession as well as his own dignity and high standing
as a member thereof"---Order accordingly.

(c) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Ch. XII & R. 156---Supreme Court Rules, 1980, O. IV---Professional conduct and etiquette
of an advocate---Scope---Bar and Bench, independence of---Scope---Advocate was not a tool or
a puppet in the hands of his client, obliged to pander to the desires of the client, right or wrong---
Rule 156 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 stated that "nothing
operates, more certainly to create or foster popular prejudice against Advocates as a class, and to
deprive the profession of [the] public esteem ... which belongs to the proper discharge of its
duties"---Said Rule further stipulated that "the Office of an Advocate does not permit, much less
does it demand of him ... the violation of any law or any manner of fraud or chicanery… In doing
his professional duty to his client he must obey the voice of his own conscience and not that of
his client"---Honest, upright and ethical Bar was absolutely essential for the just dispensation of
justice, particularly in an adversarial legal system, which had to be ensured at all costs if an
independent Bench and Bar were to be maintained.

Malik Muhammad Shafi and Dr. Shafiq ur Rehman, Voluntarily appeared in person.

Razzaq A. Mirza, Additional A.-G., Nadeem Ashraf, Senior Member, BOR, Muzaffar
Mehmood, Member, BOR, Sajid Zafar, DCO, Rawalpindi, Arif Raheem, ADC, Rawalpindi,
Tasneem Ahmad Khan, A.C. Rawalpindi, Cap. (R.) Jahanzeb Khan, Secy. Forests, Iftikhar
Ahmed, Conservator, Rawalpindi, Ejaz Ahmed, DFO, Rawalpindi, South, M. Maqsood,
Gardawar, Kala Khan, Gardawar, M. Ishfaq, Gardawar, Malik Noor Zaman, Tehsildar,
Mustansar Ali Gill, Tehsildar, Malik Mumtaz Ahmad, Naib Tehsildar, Malik Nisar, Naib
Tehsildar, Waqar Ahmad, Naib Tehsildar, M. Safdar, Naib Tehsildar, Sajid Mahmood, Naib
Tehsildar, Abdul Shakoor, Naib Tehsildar, Ameer Anwar, Patwari, Tariq Mehmood, Patwari,
Mehmood Ahmed, Patwari and Abdul Aziz, Patwari on Court's Notice.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme
Court (on behalf of Syed Ali Zafar, Advocate Supreme Court), Raja Zafar Khaliq, Advocate
Supreme Court (on Court's call) and Raja Abdul Ghafoor, Advocate-on-Record for Bahria Town.

Date of hearing: 31st March, 2015.

ORDER

JAWWAD S. KHAWAJA, J.---The case has been called in the supplementary cause list
at Serial No.1. Mr. Aitzaz Ahsan, learned Senior Advocate Supreme Court has informed us that
Syed Ali Zafar, learned Advocate Supreme Court who is out of country has told him firstly, that
he is on general adjournment and secondly, that he has moved an application to Hon'ble the
Chief Justice of Pakistan. Our Office shows that presently there is no such application pending
with the Office, although there appears to be some application which has been provided to the
press which has reported in respect of such application in today's newspapers. An inquiry from
the Office has revealed that an application was filed but was returned to Raja Abdul Ghafoor
Advocate-on-Record for Bahria Town on 28-3-2015 with Office objections and has not been
refilled after removal of objections. A copy of the application has now been supplied to us in
Court by Mr. Aitzaz Ahsan Senior Advocate Supreme Court.

2. Let the matter come up after 11-30 a.m.

3. It is now 1-30 p.m. when the matter is again being taken up. On 25-3-2015, this matter
i.e. C.M.A. No.3854 of 2014 and 4341 of 2014 in C.M.A. No.3854 of 2014 came up for hearing
and an order was passed wherein we noted that almost two years ago, on 5-6-2013 we had
directed that the Collector, Rawalpindi being the competent functionary of the Punjab Province
shall proceed promptly in accordance with law to assert/secure such rights as according to him
are vested in the Province. We also noted that proceedings which were pending before the civil
and revenue forums shall be decided by the competent forums expeditiously. A report was also
sought within thirty days from 5-6-2013. Thereafter through a chamber order we were
constrained to note that our order of 5-6-2013 had not been complied with and as a result the
report sought had not been submitted. An order dated 18-12-2013 was then passed in chambers
by Mr. Justice Ejaz Afzal Khan wherein it was recorded that "we do not understand why
demarcation of property is procrastinated[sic.] on one pretext or another. Issuance of stay order
or its refusal will not have much bearing on the determination of demarcation of boundaries. We
are also at a loss to understand as to why the spade work facilitating the resolution of the dispute,
is avoided. Let show cause notices to all concerned be issued requiring them to explain their
position in this behalf." A period of more than 16 months has elapsed since the aforesaid
chamber order. It is for this reason that when we had ascertained that action had not been taken
in compliance with our order of 5-6-2013 we directed that the matter be fixed in Court.

4. On the last date of hearing i.e. 25-3-2015 we were informed by Mr. Gohar Ali Khan,
Advocate Supreme Court that Syed Ali Zafar, learned Advocate Supreme Court for Messrs
Bahria Town was unavailable because he was on general adjournment. We noted that no request
for general adjournment was before us but nonetheless, we extended courtesy to Mr. Gohar Ali
Khan, Advocate Supreme Court although he was not counsel in this matter, and adjourned the
case for today in order not to cause any prejudice to Syed Ali Zafar's client. We may record that
because the request for general adjournment was not before us and we were not even informed
that the general adjournment had been granted, that we directed that this matter be listed for
hearing today i.e. 31-3-2015. Today Raja Abdul Ghafoor, who is Advocate-on-Record and has
instructed Syed Ali Zafar, learned Advocate Supreme Court in the matter, is present. He was not
present on 25-3-2015 but stated that he was in the Court room but could not hear when the case
was called. We accept this submission as a statement made at the Bar but what is still not
understandable is as to why the application for general adjournment had not been placed before
us. This aspect of the case is being dealt with in some detail because Ch. Aitzaz Ahsan, learned
Senior Advocate Supreme Court has appeared on behalf of Syed Ali Zafar, learned Advocate
Supreme Court and informed the Court that he had received telephonic instructions from Syed
Ali Zafar, Advocate Supreme Court in which he stated firstly, that he was on general
adjournment and secondly, that an application had been filed by him addressed to Hon'ble the
Chief Justice.

5. At this point we have to take note of the fact that reference to the said application
addressed to the Chief Justice had appeared in various newspapers and was noticed by some
functionaries of the Supreme Court this morning. We find this to be somewhat surprising
because firstly, Rule 164 of the Legal Practitioners and Bar Councils Rules, 1976 states that
"publications in newspapers by an advocate as to pending or anticipated litigation may interfere
with a fair trial in the courts and otherwise prejudice the due administration of justice. Generally
they are to be condemned". We, however, will not comment further on this aspect of the case
because Syed Ali Zafar, Advocate Supreme Court is not present today and only he may be able
to explain this circumstance. Let him submit his explanation.

6. We also inquired and were informed by the Office that no such application is pending as
it was returned to the Advocate-on-Record on 28-3-2015. Something may now be said about the
aforesaid application itself. Para-8 of the said application being relevant is reproduced as under:--

"(8) That it is an established principle of law that "justice must not only be done but seen to
be done". The CM of the Messrs Bahria Town in which the Messrs Bahria Town is challenging
the very jurisdictional basis in law under which the court is conducting these post decision
proceedings and wherein the Messrs Bahria Town is submitting that this honourable court does
not have any jurisdiction in law to direct the respondent to take action against the Messrs Bahria
Town without a fair trial which is pending and has to be first decided, yet the honourable judge
Justice Jawwad S. Khawaja again and again directed and threatened the officer concerned of the
Government to take action against the Messrs Bahria Town otherwise his service may be
harmed. This has created reasonably in the mind of the Messrs Bahria Town as a litigant that the
learned judge has already made up his mind to dismiss/has effectively negated the CM filed by
the Messrs Bahria Town and is proceeding with the case regardless. This coupled with the fact
that the Hon'ble Judge Mr. Justice Jawwad S. Khawaja refused to accept the general adjournment
of undersigned and has passed various observations and even passed order and also fixed the
next date of hearing as 31st knowing that undersigned is not available, all of which has serious
impact on the final decision. The Messrs Bahria Town has serious apprehension that the Hon'ble
Judge has already made up his mind to decide the case against the Messrs Bahria Town in the
absence of the its counsel and hence it is in the interest of justice if the case is put up before
another Bench. The learned judge even at one stage remarked that he will not record the order of
direction to the government officials and the oral observations should be sufficient." (emphasis
supplied)

7. We find it extremely disconcerting that so many wrong assertions have been made in the
application, probably on the basis of some hearsay which someone or the other may have
conveyed to Syed Ali Zafar, Advocate Supreme Court who is abroad. The first thing which we
need to comment on is the statement that the Judge has already made up his mind. On what basis
this assertion has been made is noted in the excerpt of the application reproduced above but it is
quite baseless as it does not even remotely mean that the Court has made up its mind to dismiss
the C.M.A. filed by the Messrs Bahria Town. The second patently false assertion is that Justice
Jawwad S. Khawaja refused to accept the general adjournment of the undersigned (Syed Ali
Zafar) and that the hearing was adjourned to 31-3-2015 knowing that Syed Ali Zafar is not
available. This is a patently false assertion causing aspersion not only on the Judge but the entire
Court and judiciary of this Country. The order passed on 25-3-2015 shows that neither Syed Ali
Zafar, Advocate Supreme Court was present nor was the learned Advocate-on-Record Raja
Abdul Ghafoor and there was definitely no application for general adjournment placed before the
Court on that date. It is only as a matter of courtesy which the Court extended to a member of
our Bar that information given by Mr. Gohar Ali Khan was noted in our order of 25-3-2015 to
the effect that Syed Ali Zafar, Advocate Supreme Court was on general adjournment. Mr. Gohar
Ali Khan, Advocate Supreme Court did not give any indication as to when the general
adjournment of Syed Ali Zafar would end. We, therefore, directed that in order not to prejudice
the client of Syed Ali Zafar, Advocate Supreme Court the case be adjourned to 31-3-2015
(today). It is only today that we have been informed that Syed Ali Zafar, Advocate Supreme
Court will not be available till 1-4-2015. Ch. Aitzaz Ahsan, Senior Advocate Supreme Court
stated that the Court should have extended a further courtesy to the absent advocate and should
on its own initiative have inquired from the office if there indeed was an adjournment application
and the date upto which adjournment had been allowed. With great respect to the learned Senior
Advocate Supreme Court, this is wholly untenable and unjustified and is also not in conformity
with the Rules and practice of the Court. Courtesy is always extended to the members of the Bar,
as it was extended in this case to Mr. Gohar Ali Khan, Advocate Supreme Court. However, it is
always for the party or the Advocate Supreme Court to ensure presence of the AOR at the
hearing and it is for the Advocate-on-Record to inform the Court that the learned counsel is on
adjournment or at the very least to file an application giving intimation of the general
adjournment. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court then pointed out that in
the order of 25-3-2015 it had been recorded that State land be recovered although the report itself
relating to demarcation was inconclusive. He also stated that the order of 25-3-2015 was
prejudicial to Messrs Bahria Town client of Syed Ali Zafar, Advocate Supreme Court. Syed Ali
Zafar, Advocate Supreme Court shall have the opportunity to explain the patently false and
scurrilous assertion made in his application. Let him do so. We may however, reiterate that in
our order of 5-6-2013, we had stated as under:--

"Since, we are not to record evidence and make a determination in these proceedings as
to the respective rights/title of the parties in the land in question or as to the criminal liability of
delinquent individuals, the Collector, Rawalpindi who, as noted above, is the competent
functionary of the Punjab Province shall proceed promptly in accordance with law to
assert/secure such rights as according to him are vested in the Province. The pending
proceedings before the Civil and Revenue forums shall be decided by the competent forums
expeditiously and a report of the status of these proceedings be submitted for our perusal within
30 days. Suo Motu Case No. 3 of 2009 stands disposed of."
The third allegation in the application of Mr. Ali Zafar is the most egregious and scandalous.
When the Court comes to the conclusion that its order which was passed almost two years ago
and which had directed that the Collector, Rawalpindi shall proceed promptly in accordance with
law has not been compiled with, it becomes incumbent upon the Court to take action as has been
done in the present case. Ensuring compliance of our order of 5-6-2013, two years after the same
was passed or our chamber order of 18-12-2014 after the lapse of almost 16 months is necessary
for the effective enforcement and execution of Court orders. No person can feel threatened by the
efforts made by the Court to ensure compliance of its orders. We may also add that the
government functionaries, in particular Mr. Sajid Zafar, Collector Rawalpindi was directed to
comply with our orders. Referring to this effort on the part of the Court as a threat to the officer
concerned, is wholly uncalled for.

8. On the last date of hearing also, we had directed that the Collector shall make sure that
action according to law is taken and our orders are complied with. We may also at this point note
that it was as far back as 5th June, 2013 almost 22 months ago that we had passed our order and
it is only because of non-compliance thereof that we had passed the chamber order of 18-12-
2013 and had also directed the issuance of show cause notices to all concerned requiring them to
explain their conduct in this behalf. Only one of the persons has filed a reply to the show cause
notice i.e. respondent No.2 namely, Sher Alam Mehsood. It is for this reason that in Criminal
Petition No.110 of 2014 notices were issued to the respondents other than respondents Nos.2, 5,
6 and 23. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court then emphasized that
according to Syed Ali Zafar, Advocate Supreme Court the application addressed to Hon'ble the
Chief Justice has been received in the office. In this behalf we have already ascertained from the
Office as noted above.

9. Coming back to the aforesaid application addressed to Hon'ble the Chief Justice and the
extract therefrom which has been reproduced above, it has been stated by Syed Ali Zafar,
Advocate Supreme Court that the action of Justice Jawwad S. Khawaja "has created reasonably
in the mind of the Messrs Bahria Town as a litigant that the learned Judge has already made up
his mind to dismiss/has effectively negated the CM filed by the Messrs Bahria Town and is
proceeding with the case regardless". This apprehension on the part of the Messrs Bahria Town
has been repeated further in the extract of the application reproduced above. We may note that
the Messrs Bahria Town is merely a corporate entity and it has no mind of its own and can have
no apprehension of its own. It only acts through natural persons such as its directors, chief
executive etc. Syed Ali Zafar, Advocate Supreme Court may therefore, explain to the Court as to
who has the apprehension and on what basis. In any event prima facie, there appear to be some
significant breaches of the Supreme Court Rules, 1980 and of the Code of Conduct prescribed
for Advocates under the Legal Practitioners and Bar Councils Act, 1973. These apparent
violations include violation by an Advocate "to uphold at all times the dignity and high standing
of his profession as well as his own dignity and high standing as a member thereof".

10. It may be added that an Advocate is not a tool or a puppet in the hands of his client,
obliged to pander to the desires of the client, right or wrong. Rule 156 of the Pakistan Legal
Practitioners and Bar Councils Rules, 1976 states that "nothing operates, more certainly to create
or foster popular prejudice against Advocates as a class, and to deprive the profession of [the]
public esteem ... which belongs to the proper discharge of its duties". The Rule further stipulates
that "the Office of an Advocate does not permit, much less does it demand of him ... the violation
of any law or any manner of fraud or chicanery. In doing his professional duty to his client he
must obey the voice of his own conscience and not that of his client". An honest, upright and
ethical Bar is absolutely essential for the just dispensation of justice, particularly in our
adversarial legal system. This has to be ensured at all cost if an independent Bench and Bar are
to be maintained.

11. We may also point out at this stage that this Court has been hearing a number of cases
involving Messrs Bahria Town or its directors. It can be recalled that 4, 5 or even more cases
were filed against the M/s Bahria Town by various individuals. Syed Ali Zafar, Advocate
Supreme Court was representing the Messrs Bahria Town in those cases also. A number of those
cases were decided in favour of the Messrs Bahria Town and no apprehension was ever
expressed at that time although some cases were decided in a manner not strictly in accordance
with the wishes of the Messrs Bahria Town. The office shall trace those cases also and place the
same on record.

12. Since Syed Ali Zafar, Advocate Supreme Court is on general adjournment till 1-4-2015,
let this matter be listed for hearing on 2-4-2015. Syed Ali Zafar, Advocate Supreme Court will
be given full opportunity to give his explanation in respect of the matters noted above so that
appropriate orders can be passed.

MWA/I-5/SC Order accordingly.

2015 S C M R 882

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Iqbal Hameedur Rahman, JJ

C.M.A. NO. 3854 OF 2014 IN SUO MOTU CASE NO.3 OF 2009: In the matter of

C.M.A. No. 3854 of 2014 in SMC No. 3 of 2009

(Implementation of the order dated 5-6-2013 passed in SMC 3

of 2009)

AND

C.M.A. No.4341 of 2014 in C.M.A. No. 3854 of 2014

in SMC No.3 of 2009

(Concise statement on behalf of respondent-Bahria Town)

C.M.A. No.3854 of 2014 in SMC No.3 of 2009, C.M.A. No. 4341 of 2014 in C.M.A. No.3854 of
2014 in SMC No.3 of 2009, decided on 31st March, 2015.

(a) Supreme Court Rules, 1980---

----O. IV---General adjournment---Intimation of general adjournment by Advocate to the

Supreme Court---Practice and procedure---Courtesy was always extended to the members of the
Bar, however, it was always for the party or the Advocate Supreme Court to ensure presence of
the Advocate-on-Record (AOR) at the hearing and it was for the Advocate-on-Record to inform
the court that the counsel was on adjournment or at the very least to file an application giving
intimation of the general adjournment.

(b) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Ch. XII & R. 134---Supreme Court Rules, 1980, O. IV---Constitution of Pakistan, Art.
184(3)---Suo motu case before the Supreme Court---Apprehension of bias of Judge by the
party---Filing of application by a corporate entity---Scope---One of parties to the case, which
was a corporate entity, filed an application before the Chief Justice of the Supreme Court
outlining that one of the Judges of the Supreme Court hearing the present case had already made
up his mind regarding certain aspects of the case---Validity---Party which had filed the said
application was merely a corporate entity and it had no mind of its own and could have no
apprehension of its own---Corporate entity only acted through natural persons such as its
directors, chief executive etc., therefore the counsel representing the corporate entity had to
explain to the court as to who had the apprehension and on what basis---Prima facie, there
appeared to be some significant breaches of the Supreme Court Rules, 1980, and of the Code of
Conduct prescribed for Advocates under the Legal Practitioners and Bar Councils Act, 1973 in
the present case---Such apparent violations included violation by an Advocate "to uphold at all
times the dignity and high standing of his profession as well as his own dignity and high standing
as a member thereof"---Order accordingly.

(c) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Ch. XII & R. 156---Supreme Court Rules, 1980, O. IV---Professional conduct and etiquette
of an advocate---Scope---Bar and Bench, independence of---Scope---Advocate was not a tool or
a puppet in the hands of his client, obliged to pander to the desires of the client, right or wrong---
Rule 156 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 stated that "nothing
operates, more certainly to create or foster popular prejudice against Advocates as a class, and to
deprive the profession of [the] public esteem ... which belongs to the proper discharge of its
duties"---Said Rule further stipulated that "the Office of an Advocate does not permit, much less
does it demand of him ... the violation of any law or any manner of fraud or chicanery… In doing
his professional duty to his client he must obey the voice of his own conscience and not that of
his client"---Honest, upright and ethical Bar was absolutely essential for the just dispensation of
justice, particularly in an adversarial legal system, which had to be ensured at all costs if an
independent Bench and Bar were to be maintained.

Malik Muhammad Shafi and Dr. Shafiq ur Rehman, Voluntarily appeared in person.
 Razzaq A. Mirza, Additional A.-G., Nadeem Ashraf, Senior Member, BOR, Muzaffar
Mehmood, Member, BOR, Sajid Zafar, DCO, Rawalpindi, Arif Raheem, ADC, Rawalpindi,
Tasneem Ahmad Khan, A.C. Rawalpindi, Cap. (R.) Jahanzeb Khan, Secy. Forests, Iftikhar
Ahmed, Conservator, Rawalpindi, Ejaz Ahmed, DFO, Rawalpindi, South, M. Maqsood,
Gardawar, Kala Khan, Gardawar, M. Ishfaq, Gardawar, Malik Noor Zaman, Tehsildar,
Mustansar Ali Gill, Tehsildar, Malik Mumtaz Ahmad, Naib Tehsildar, Malik Nisar, Naib
Tehsildar, Waqar Ahmad, Naib Tehsildar, M. Safdar, Naib Tehsildar, Sajid Mahmood, Naib
Tehsildar, Abdul Shakoor, Naib Tehsildar, Ameer Anwar, Patwari, Tariq Mehmood, Patwari,
Mehmood Ahmed, Patwari and Abdul Aziz, Patwari on Court's Notice.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Gohar Ali Khan, Advocate Supreme
Court (on behalf of Syed Ali Zafar, Advocate Supreme Court), Raja Zafar Khaliq, Advocate
Supreme Court (on Court's call) and Raja Abdul Ghafoor, Advocate-on-Record for Bahria Town.

Date of hearing: 31st March, 2015.

ORDER

JAWWAD S. KHAWAJA, J.---The case has been called in the supplementary cause list
at Serial No.1. Mr. Aitzaz Ahsan, learned Senior Advocate Supreme Court has informed us that
Syed Ali Zafar, learned Advocate Supreme Court who is out of country has told him firstly, that
he is on general adjournment and secondly, that he has moved an application to Hon'ble the
Chief Justice of Pakistan. Our Office shows that presently there is no such application pending
with the Office, although there appears to be some application which has been provided to the
press which has reported in respect of such application in today's newspapers. An inquiry from
the Office has revealed that an application was filed but was returned to Raja Abdul Ghafoor
Advocate-on-Record for Bahria Town on 28-3-2015 with Office objections and has not been
refilled after removal of objections. A copy of the application has now been supplied to us in
Court by Mr. Aitzaz Ahsan Senior Advocate Supreme Court.

2. Let the matter come up after 11-30 a.m.

3. It is now 1-30 p.m. when the matter is again being taken up. On 25-3-2015, this matter
i.e. C.M.A. No.3854 of 2014 and 4341 of 2014 in C.M.A. No.3854 of 2014 came up for hearing
and an order was passed wherein we noted that almost two years ago, on 5-6-2013 we had
directed that the Collector, Rawalpindi being the competent functionary of the Punjab Province
shall proceed promptly in accordance with law to assert/secure such rights as according to him
are vested in the Province. We also noted that proceedings which were pending before the civil
and revenue forums shall be decided by the competent forums expeditiously. A report was also
sought within thirty days from 5-6-2013. Thereafter through a chamber order we were
constrained to note that our order of 5-6-2013 had not been complied with and as a result the
report sought had not been submitted. An order dated 18-12-2013 was then passed in chambers
by Mr. Justice Ejaz Afzal Khan wherein it was recorded that "we do not understand why
demarcation of property is procrastinated[sic.] on one pretext or another. Issuance of stay order
or its refusal will not have much bearing on the determination of demarcation of boundaries. We
are also at a loss to understand as to why the spade work facilitating the resolution of the dispute,
is avoided. Let show cause notices to all concerned be issued requiring them to explain their
position in this behalf." A period of more than 16 months has elapsed since the aforesaid
chamber order. It is for this reason that when we had ascertained that action had not been taken
in compliance with our order of 5-6-2013 we directed that the matter be fixed in Court.

4. On the last date of hearing i.e. 25-3-2015 we were informed by Mr. Gohar Ali Khan,
Advocate Supreme Court that Syed Ali Zafar, learned Advocate Supreme Court for Messrs
Bahria Town was unavailable because he was on general adjournment. We noted that no request
for general adjournment was before us but nonetheless, we extended courtesy to Mr. Gohar Ali
Khan, Advocate Supreme Court although he was not counsel in this matter, and adjourned the
case for today in order not to cause any prejudice to Syed Ali Zafar's client. We may record that
because the request for general adjournment was not before us and we were not even informed
that the general adjournment had been granted, that we directed that this matter be listed for
hearing today i.e. 31-3-2015. Today Raja Abdul Ghafoor, who is Advocate-on-Record and has
instructed Syed Ali Zafar, learned Advocate Supreme Court in the matter, is present. He was not
present on 25-3-2015 but stated that he was in the Court room but could not hear when the case
was called. We accept this submission as a statement made at the Bar but what is still not
understandable is as to why the application for general adjournment had not been placed before
us. This aspect of the case is being dealt with in some detail because Ch. Aitzaz Ahsan, learned
Senior Advocate Supreme Court has appeared on behalf of Syed Ali Zafar, learned Advocate
Supreme Court and informed the Court that he had received telephonic instructions from Syed
Ali Zafar, Advocate Supreme Court in which he stated firstly, that he was on general
adjournment and secondly, that an application had been filed by him addressed to Hon'ble the
Chief Justice.

5. At this point we have to take note of the fact that reference to the said application
addressed to the Chief Justice had appeared in various newspapers and was noticed by some
functionaries of the Supreme Court this morning. We find this to be somewhat surprising
because firstly, Rule 164 of the Legal Practitioners and Bar Councils Rules, 1976 states that
"publications in newspapers by an advocate as to pending or anticipated litigation may interfere
with a fair trial in the courts and otherwise prejudice the due administration of justice. Generally
they are to be condemned". We, however, will not comment further on this aspect of the case
because Syed Ali Zafar, Advocate Supreme Court is not present today and only he may be able
to explain this circumstance. Let him submit his explanation.

6. We also inquired and were informed by the Office that no such application is pending as
it was returned to the Advocate-on-Record on 28-3-2015. Something may now be said about the
aforesaid application itself. Para-8 of the said application being relevant is reproduced as under:--

"(8) That it is an established principle of law that "justice must not only be done but seen to
be done". The CM of the Messrs Bahria Town in which the Messrs Bahria Town is challenging
the very jurisdictional basis in law under which the court is conducting these post decision
proceedings and wherein the Messrs Bahria Town is submitting that this honourable court does
not have any jurisdiction in law to direct the respondent to take action against the Messrs Bahria
Town without a fair trial which is pending and has to be first decided, yet the honourable judge
Justice Jawwad S. Khawaja again and again directed and threatened the officer concerned of the
Government to take action against the Messrs Bahria Town otherwise his service may be
harmed. This has created reasonably in the mind of the Messrs Bahria Town as a litigant that the
learned judge has already made up his mind to dismiss/has effectively negated the CM filed by
the Messrs Bahria Town and is proceeding with the case regardless. This coupled with the fact
that the Hon'ble Judge Mr. Justice Jawwad S. Khawaja refused to accept the general adjournment
of undersigned and has passed various observations and even passed order and also fixed the
next date of hearing as 31st knowing that undersigned is not available, all of which has serious
impact on the final decision. The Messrs Bahria Town has serious apprehension that the Hon'ble
Judge has already made up his mind to decide the case against the Messrs Bahria Town in the
absence of the its counsel and hence it is in the interest of justice if the case is put up before
another Bench. The learned judge even at one stage remarked that he will not record the order of
direction to the government officials and the oral observations should be sufficient." (emphasis
supplied)

7. We find it extremely disconcerting that so many wrong assertions have been made in the
application, probably on the basis of some hearsay which someone or the other may have
conveyed to Syed Ali Zafar, Advocate Supreme Court who is abroad. The first thing which we
need to comment on is the statement that the Judge has already made up his mind. On what basis
this assertion has been made is noted in the excerpt of the application reproduced above but it is
quite baseless as it does not even remotely mean that the Court has made up its mind to dismiss
the C.M.A. filed by the Messrs Bahria Town. The second patently false assertion is that Justice
Jawwad S. Khawaja refused to accept the general adjournment of the undersigned (Syed Ali
Zafar) and that the hearing was adjourned to 31-3-2015 knowing that Syed Ali Zafar is not
available. This is a patently false assertion causing aspersion not only on the Judge but the entire
Court and judiciary of this Country. The order passed on 25-3-2015 shows that neither Syed Ali
Zafar, Advocate Supreme Court was present nor was the learned Advocate-on-Record Raja
Abdul Ghafoor and there was definitely no application for general adjournment placed before the
Court on that date. It is only as a matter of courtesy which the Court extended to a member of
our Bar that information given by Mr. Gohar Ali Khan was noted in our order of 25-3-2015 to
the effect that Syed Ali Zafar, Advocate Supreme Court was on general adjournment. Mr. Gohar
Ali Khan, Advocate Supreme Court did not give any indication as to when the general
adjournment of Syed Ali Zafar would end. We, therefore, directed that in order not to prejudice
the client of Syed Ali Zafar, Advocate Supreme Court the case be adjourned to 31-3-2015
(today). It is only today that we have been informed that Syed Ali Zafar, Advocate Supreme
Court will not be available till 1-4-2015. Ch. Aitzaz Ahsan, Senior Advocate Supreme Court
stated that the Court should have extended a further courtesy to the absent advocate and should
on its own initiative have inquired from the office if there indeed was an adjournment application
and the date upto which adjournment had been allowed. With great respect to the learned Senior
Advocate Supreme Court, this is wholly untenable and unjustified and is also not in conformity
with the Rules and practice of the Court. Courtesy is always extended to the members of the Bar,
as it was extended in this case to Mr. Gohar Ali Khan, Advocate Supreme Court. However, it is
always for the party or the Advocate Supreme Court to ensure presence of the AOR at the
hearing and it is for the Advocate-on-Record to inform the Court that the learned counsel is on
adjournment or at the very least to file an application giving intimation of the general
adjournment. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court then pointed out that in
the order of 25-3-2015 it had been recorded that State land be recovered although the report itself
relating to demarcation was inconclusive. He also stated that the order of 25-3-2015 was
prejudicial to Messrs Bahria Town client of Syed Ali Zafar, Advocate Supreme Court. Syed Ali
Zafar, Advocate Supreme Court shall have the opportunity to explain the patently false and
scurrilous assertion made in his application. Let him do so. We may however, reiterate that in
our order of 5-6-2013, we had stated as under:--

"Since, we are not to record evidence and make a determination in these proceedings as
to the respective rights/title of the parties in the land in question or as to the criminal liability of
delinquent individuals, the Collector, Rawalpindi who, as noted above, is the competent
functionary of the Punjab Province shall proceed promptly in accordance with law to
assert/secure such rights as according to him are vested in the Province. The pending
proceedings before the Civil and Revenue forums shall be decided by the competent forums
expeditiously and a report of the status of these proceedings be submitted for our perusal within
30 days. Suo Motu Case No. 3 of 2009 stands disposed of."

The third allegation in the application of Mr. Ali Zafar is the most egregious and scandalous.
When the Court comes to the conclusion that its order which was passed almost two years ago
and which had directed that the Collector, Rawalpindi shall proceed promptly in accordance with
law has not been compiled with, it becomes incumbent upon the Court to take action as has been
done in the present case. Ensuring compliance of our order of 5-6-2013, two years after the same
was passed or our chamber order of 18-12-2014 after the lapse of almost 16 months is necessary
for the effective enforcement and execution of Court orders. No person can feel threatened by the
efforts made by the Court to ensure compliance of its orders. We may also add that the
government functionaries, in particular Mr. Sajid Zafar, Collector Rawalpindi was directed to
comply with our orders. Referring to this effort on the part of the Court as a threat to the officer
concerned, is wholly uncalled for.

8. On the last date of hearing also, we had directed that the Collector shall make sure that
action according to law is taken and our orders are complied with. We may also at this point note
that it was as far back as 5th June, 2013 almost 22 months ago that we had passed our order and
it is only because of non-compliance thereof that we had passed the chamber order of 18-12-
2013 and had also directed the issuance of show cause notices to all concerned requiring them to
explain their conduct in this behalf. Only one of the persons has filed a reply to the show cause
notice i.e. respondent No.2 namely, Sher Alam Mehsood. It is for this reason that in Criminal
Petition No.110 of 2014 notices were issued to the respondents other than respondents Nos.2, 5,
6 and 23. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court then emphasized that
according to Syed Ali Zafar, Advocate Supreme Court the application addressed to Hon'ble the
Chief Justice has been received in the office. In this behalf we have already ascertained from the
Office as noted above.

9. Coming back to the aforesaid application addressed to Hon'ble the Chief Justice and the
extract therefrom which has been reproduced above, it has been stated by Syed Ali Zafar,
Advocate Supreme Court that the action of Justice Jawwad S. Khawaja "has created reasonably
in the mind of the Messrs Bahria Town as a litigant that the learned Judge has already made up
his mind to dismiss/has effectively negated the CM filed by the Messrs Bahria Town and is
proceeding with the case regardless". This apprehension on the part of the Messrs Bahria Town
has been repeated further in the extract of the application reproduced above. We may note that
the Messrs Bahria Town is merely a corporate entity and it has no mind of its own and can have
no apprehension of its own. It only acts through natural persons such as its directors, chief
executive etc. Syed Ali Zafar, Advocate Supreme Court may therefore, explain to the Court as to
who has the apprehension and on what basis. In any event prima facie, there appear to be some
significant breaches of the Supreme Court Rules, 1980 and of the Code of Conduct prescribed
for Advocates under the Legal Practitioners and Bar Councils Act, 1973. These apparent
violations include violation by an Advocate "to uphold at all times the dignity and high standing
of his profession as well as his own dignity and high standing as a member thereof".

10. It may be added that an Advocate is not a tool or a puppet in the hands of his client,
obliged to pander to the desires of the client, right or wrong. Rule 156 of the Pakistan Legal
Practitioners and Bar Councils Rules, 1976 states that "nothing operates, more certainly to create
or foster popular prejudice against Advocates as a class, and to deprive the profession of [the]
public esteem ... which belongs to the proper discharge of its duties". The Rule further stipulates
that "the Office of an Advocate does not permit, much less does it demand of him ... the violation
of any law or any manner of fraud or chicanery. In doing his professional duty to his client he
must obey the voice of his own conscience and not that of his client". An honest, upright and
ethical Bar is absolutely essential for the just dispensation of justice, particularly in our
adversarial legal system. This has to be ensured at all cost if an independent Bench and Bar are
to be maintained.

11. We may also point out at this stage that this Court has been hearing a number of cases
involving Messrs Bahria Town or its directors. It can be recalled that 4, 5 or even more cases
were filed against the M/s Bahria Town by various individuals. Syed Ali Zafar, Advocate
Supreme Court was representing the Messrs Bahria Town in those cases also. A number of those
cases were decided in favour of the Messrs Bahria Town and no apprehension was ever
expressed at that time although some cases were decided in a manner not strictly in accordance
with the wishes of the Messrs Bahria Town. The office shall trace those cases also and place the
same on record.

12. Since Syed Ali Zafar, Advocate Supreme Court is on general adjournment till 1-4-2015,
let this matter be listed for hearing on 2-4-2015. Syed Ali Zafar, Advocate Supreme Court will
be given full opportunity to give his explanation in respect of the matters noted above so that
appropriate orders can be passed.

MWA/I-5/SC Order accordingly.

2015 S C M R 997

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ
KHYBER PAKHTUNKHWA BAR COUNCIL through Chief Secretary---Petitioner

versus

MUKHTAR AHMED KHAN ADVOCATE and others---Respondents

Civil Petition No. 1213 of 2014, decided on 3rd October, 2014.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 3-6-2014
passed in W.P. No. 1564 of 2011)

Khyber Pakhtunkhwa Legal Practitioners and Bar Council Rules, 2010---

----Rr. 28(f)(ii), (iii) & 55---Constitution of Pakistan, Art.25---Enrollment Fee, General Welfare
Fund, Benevolent Fee and other charges---Discrimination---Advocate, enrolled in Province of
Sindh from where he shifted to Province of Khyber Pakhtunkhwa was directed by Khyber
Pakhtunkhwa Bar Council to deposit Rs.30,000 as Enrollment Fee, General Welfare Fund of Bar
Council, Benevolent Fee and other charges as required by Rules---High Court, under its
constitutional jurisdiction, declared Rr.28 & 55 of Khyber Pakhtunkhwa Legal Practitioners and
Bar Council Rules, 2010 as discriminatory on the ground that same were not included in the
Rules of other Bar Councils---Validity---Requirement of deposit of such amount was applicable
even to those already enrolled as members of another Bar Council---Advocate could not dispute
his obligation under Khyber Pakhtunkhwa Legal Practitioners and Bar Council Rules, 2010 to
pay such fee and contributions---Supreme Court set aside the order passed by High Court which
had misapplied Art. 25 of the Constitution---Appeal was allowed.

Syed Amjad Shah, Advocate Supreme Court for Petitioner.

Respondent No.1 in person.

Syed Rifaqat Hussain Shah, Advocate-on-Record/Advocate Supreme Court for

Respondent No.2.

Muhammad Aqil, Advocate Supreme Court (Member Sindh Bar Council) for Respondent
No.3.

Date of hearing: 3rd October, 2014.

JUDGMENT

NASIR-UL-MULK, C.J.---Respondent No. 1, Mukhtar Ahmed Khan, was enrolled as

an Advocate of the High Court of Sindh. In 2010, he shifted to his home town in District Swabi
in order to practice law in N.-W.F.P. [now Khyber Pakhtunkhwa (KPK)]. He applied for
registration to the KPK Bar Council and was directed to deposit Rs.30,000 as Enrollment Fee,
General Welfare Fund of Bar Council and Benevolent Fund and other charges as required by the
Rules. He questioned this demand through Writ Petition filed before the Peshawar High Court
which was allowed by the High Court through the impugned judgment on the ground that the
said Rules were discriminatory as the same were not included in the Rules of others Bar
Councils. The KPK Bar Council has impugned the judgment of the Peshawar High Court
through this petition for leave to appeal.

2. Notice was issued to the respondents. Respondent No.1 appeared in person.

3. The learned counsel for the petitioner submitted that under Rules 28(f)(ii)(iii) and 55 of
the KPK Legal Practitioners and Bar Council Rules, 2010 (hereinafter "Bar Council Rules") read
with Rule 4 of the KPK Advocates Benevolent Fund Rules, 2010 (hereinafter "Benevolent Fund
Rules") requires that an advocate applying for enrolment shall deposit enrolment or re-enrolment
fee along with payment towards general welfare fund and benevolent fund; that the said
requirement is also applicable to lawyers already enrolled as advocate of another Bar Council. It
was pointed out that the High Court erred on facts as similar rules are available in the Bar
Council Rules of Sindh and Punjab.

4. The respondent, however, contended that the said Rules are discriminatory as they are not
included in the relevant Rules of the Punjab and Sindh Bar Councils, that he was simply shifting
his practice from one Province to another and that his contribution to the benevolent fund and the
general welfare fund can be transferred from Sindh Bar Council to KPK Bar Council.

5. Rule 55 of the KPK Legal Practitioners and Bar Council Rules, 2010 provides:

"An Advocate enrolled with any other Bar Council of Pakistan, who wants to be enrolled
as such with Bar Council, shall have to provide all the documents required for enrolment as an
Advocate along with No Objection Certificate (N.O.C.) from the concerned Bar Council and to
pay enrolment fee, benevolent fund and other charges accordingly to the age group prescribed
under these Rules."

6. Rule 55 of the Bar Council rules when read with Rule 28(f)(ii)(iii) provide that along
with application form the applicant shall also file the receipt of enrolment or re-enrolment fee,
payment towards general welfare determined as per the table given in the said Rules, benevolent
fee and other charges. The said Rule clearly shows that the requirement of deposit of the said
amounts is applicable even to those already enrolled as Members of another bar council. When
the above provisions were brought to the notice of the respondent he was not in a position to
dispute his obligation under the Bar Council Rules to .pay the said fee and contributions.

7. As regards the argument regarding discrimination, the same is

misconceived. A Bar Council is created under a Provincial statute
which is empowered to frame its own rules. Rules framed by one
Bar Council cannot be struck down on the ground that the same
are not in conformity with Rules of another. It is not the case of the respondent that the
KPK Bar Council has discriminated in the application of its own rules. Any argument alleging
discrimination would lead to absurdity as a person affected by a provincial law or rule, would
then be permitted to argue that he be regulated by beneficial rules of another province.

8. Even on the factual plan the respondent had no case as the Punjab Bar Council as well as
Sindh Bar Council do not provide any exemption from payment of Benevolent Fund etc to
lawyers who are already members of another bar council where they have been making such
contributions. Rule 2.2 of the Punjab Advocates Benevolent Fund Rules, 1974 refers to
advocates contributing their funds as 'contributory advocates' and does not make any distinction
between an advocate originally registered with the bar council or registered on transfer from
another bar council. Similarly Rule 48-A of the Sindh Legal Practitioners and Bar Council Rules,
2002 provides for payment of Rs.2,000 as fee and the benevolent fund contribution in
accordance with Rule 2.2 of the Benevolent Fund Rules. On this score alone, the respondent's
petition was liable to be dismissed.

9. In the circumstances, we have no hesitation to hold that the High Court has misapplied
Article 25 of the Constitution. The petition is, therefore, converted into appeal and allowed.
These are the reasons of our short order of even date, which reads:

"For the reasons to be recorded later, this petition is converted into appeal and allowed.
The impugned judgment is set aside and Writ Petition filed before the learned High Court stands
dismissed."

MH/K-2/SC Appeal allowed.

P L D 2016 Sindh 318

Before Aqeel Ahmed Abbasi and Syed Saeeduddin Nasir, JJ

MUHAMMAD ASHRAF SAMOO and 30 others---Petitioners

Versus

SINDH BAR COUNCIL through Secretary and 59 others---Respondents

Constitutional Petition No.D-5948 of 2014, decided on 4th August, 2015.

(a) Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 11, 13, 22(1) & 61---Constitution of Pakistan, Art.199---Constitutional petition---Election

dispute---Disputed question of fact---Petitioners were candidates in elections for Sindh Bar
Council and assailed election result of returned candidates---Main grievances of petitioners were
that election results were result of rigging, illegalities and irregularities committed by Returning
Officer---Validity---Generalized and vague allegations were raised by petitioners without any
material or substance after completion of entire election process and announcement of unofficial
results---Most of the facts as stated in memo of petition were seriously disputed and denied by
officials as well as respondents through their affidavits, and the same otherwise required
evidence---Such disputed facts could not be examined by high Court while exercising its
jurisdiction under Art.199 of the Constitution---High Court declined to interfere in the election
result---Petition was dismissed in circumstances.

Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge and others 1994 SCMR 1299;
Syed Zafar Ali Shah v. Hamid Khan and others 1992 CLC 665; Muhammad Saleem v.
Provincial Election Authority Sindh and others PLD 1985 Kar. 135; Muhammad Baran and
others v. Member, Settlement and Rehabilitation and others PLD 1991 SC 691; Lt. Col. Farzand
Ali and others v. Province of West Pakistan PLD 1970 SC 98; Chaudhry Salahuddin, MLA v.
Haji Ghulam Muhammad and others PLD 1957 (WP) Lah. 728; Muhammad Tariq Malik v.
Pakistan through Secretary Establishment and others PLD 2014 Isl. 38; Sanaullah Khan
Gandapur v. Advocate General, N.-W.F.P. and others 1995 SCMR 79; Rana Moen Akhtar v.
Additional Collector, Customs SBLR 2015 Sindh 01; Allah Ditta v. Muhammad Munir and
others PLD 1966 (WP) Lah. 770; Muhammad Mustafa v. Syed Zafar Ali Shah and others PLD
2014 Sindh 224; In the matter of Human Rights Case Nos. 4668 of 2006, 1111 of 2007 and
15283-G of 2010 PLD 2010 SC 759 and Islamic Republic of Pakistan v. Israrul Haq and others
PLD 1981 SC 531 distinguished.

Munir A. Malik v. Malik Muhammad Qayyum and others PLD 2007 SC 262 ref.

Tariq Mehmood A. Khan and another v. Sindh Bar Council 2012 SCMR 702; Sanaullah
Khan Gandapur v. Advocate General, NWFP/Returning Officer and others PLD 1997 Pesh. 80
and Javed Iqbal and another v. Returning Officer and others PLD 2005 Quetta 121 rel.

(b) Legal Practitioners and Bar Councils Rules, 1976--

----Rr. 61 to 65---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---

Alternate efficacious remedy---Election dispute can only be agitated at relevant point of time in
terms of Rr.61, 62, 63, 64 & 65 of Legal Practitioners and Bar Councils Rules, 1976, before
Election Tribunal, instead of directly approaching High Court by invoking provisions of Art.199
of the Constitution.

Z. K. Jatoi and Abdul Waheed Kanjoo for Petitioner.

Ms. Afroze (Ahsan) Haq for Petitioner No. 17.

Khalid Latif for Respondent No. 1.

Mustafa Lakhani and Salahuddin Khan Gandapur for Respondent No.21

Farhatullah for Respondents Nos. 37 and 47.

Muhammad Aqil, Irfan Ahmed Siddiqui and Salahuddin Ahmed for Respondent No.40.
 Hakim A. Shaikh for Respondent No. 7.

Abid S. Zuberi and Saad Siddiqui for Respondent No. 54.

Sabir Shah, Advocate.

Peer Derwesh, Advocate.

Tariq Mehmood A. Khan for Respondent No. 37.

Saifullah, AAG along with Ms. Nasreen Sehto, State Counsel.

Date of hearing: 18th May, 2015.

JUDGMENT

AQEEL AHMED ABBASI, J.--Through instant petition the petitioners, who are
practicing advocates at Karachi in the High Court of Sindh and participated in the elections of
Sindh Bar Council, held on 8th November, 2014, for the period 2015-2019, for various seats of
five Districts of Karachi Division ("the impugned elections"), had impugned the entire polling
process and have sought the following declarations:

"It is, therefore, prayed by the petitioners that this Hon'ble Court may be graciously
pleased to :-

i) Declare that the election held on 8th November, 2014 for the Sindh Bar Council
for Karachi Seats of all five Districts as null, void, illegal and of no legal effect.

ii) Order for re-polling of the votes in all five Districts of Karachi on the same
nomination forms with due compliance of the Rules of Pakistan Legal Practitioners and
Bar Councils Rules, 1976.

iii) Direct the respondent No. 2 to with-hold the result of the Election of Sindh Bar
Council held on 8th November, 2014 and/or not to notify the result in the Official Gazette
till disposal of this petition.

iv) Direct the Nazir to take all boxes / bags of votes and all relevant records and
papers in safe custody.

v) Cost of the proceedings.

vi) Any other or further relief, which this Hon'ble Court may be pleased to deem fit
and proper in the circumstances of the case.
2. Brief facts of the case, as stated by the petitioners, are that the petitioners are Advocates
practicing at Karachi in the High Court of Sindh, whose names are appearing in the Roll of Sindh
Bar Council. It is further stated that petitioners participated in the elections of Sindh Bar Council
for the years 2015-2019, held on 8th November, 2014, however, they noticed certain illegalities
and irregularities allegedly committed by the respondents, particularly, respondent No.2, the
Chairman, Sindh Bar Council, who, according to the petitioners, suddenly changed the venue of
the election for the candidates of Malir District from District Courts, Malir to newly constructed
building adjacent to New Annexe Building of High Court of Sindh ("the new High Court
Building") without prior notice of 30 days, as required in terms of Rules 11 and 13 of the Legal
Practitioners and Bar Councils Rules, 1976 ("the Rules, 1976"). It has been further stated in the
memo of petition that earlier a request was made on behalf of some candidates of Malir District
to change the polling station from District Courts Malir to High Court of Sindh Building which
was declined in writing by the respondent No. 2, Chairman, Sindh Bar Council vide letter dated
01.11.2014, however, subsequently, the said venue was changed from District Courts Malir to
the new High Court Building only two days prior to the polling day, therefore, according to the
petitioners, their voters could not cast their votes. It has been further stated that the condition for
verification of identity card issued by the Pakistan Bar Council/Sindh Bar Council was also
relaxed by the Chairman, Sindh Bar Council in violation of law / rule, which resulted in bogus
voting, whereas, according to the petitioners, the polling was rigged as there was no proper
identification of the voters, whereas, the media was also not allowed to cover the impugned
elections of the Sindh Bar Council. It has been further alleged that the ballot boxes/bags were
also not properly sealed and stamped and the complaint filed by the petitioners in this regard was
not entertained by the Presiding Officer, therefore, it has been prayed that, the impugned
elections of the Sindh Bar Council may be declared as illegal and re-polling of the votes in all the
five Districts of Karachi Division on the same nomination papers may be directed to be held
within a short period. It has been further prayed that Nazir of this Court may be directed to take
all ballot boxes / bags of votes as well as the relevant record for safe custody for scrutiny by this
Court.

3. Learned counsel for the petitioners has argued that pursuant to rules 11 and 13 of the
Rules, 1976, final voters list along with polling stations is required to be issued 30 days prior to
the day of election, whereas, in the instant case, per learned counsel, the venue of Malir Polling
Station, notified at District Courts Malir, vide letter dated 16 October, 2014, was changed by
respondent No. 2 surreptitiously and without notice to all concerned, vide letter dated 6.11.2014,
addressed to the Secretary Sindh Bar Council, which fact could not be known either to the
candidates participating in the elections or to their voters. Per learned counsel, in the Sindh Bar
Council elections for Karachi Division every voter has to cast 16 votes i.e. six votes for District
South, four votes for District East, four votes for District Central and, one vote for District West
and one vote for District Malir, whereas, per learned counsel, in view of the sudden change of
polling station from District Courts Malir to the the new High Court Building, large number of
voters of Malir District could not cast their votes. Learned counsel further argued that in terms of
rule 22(1) of the Rules, 1976, the ballot paper for the election to a member of the Provincial Bar
Council is to be issued to the voter by the polling officer only against the production of an
identity card issued to him by such provincial bar counsel, whereas, in the impugned elections
such rule was relaxed by respondent No. 2 and the voters were allowed to cast their votes on the
basis of cards issued by the High Court Bar Association or even on production of National
Identity Card. Therefore, per learned counsel, the election process was not transparent. It has
been further argued by the learned counsel for the petitioners that, in order to protect the
illegalities and irregularities committed by the respondents during the entire election process, the
media was not allowed to cover the elections. Per learned counsel, the objection regarding
maintainability of the instant petition by the respondent is misconceived for the reason that the
petitioners are not disputing the candidature of any member who participated in the impugned
elections of Sindh Bar Council, on the contrary, the entire election process and the violations
committed by the respondents have been challenged through instant petition, which, otherwise,
could not be challenged by filing a petition before election tribunal in terms of rule 61 of the
Rules, 1976. While concluding his arguments, learned counsel for the petitioners, has submitted
that since fundamental rights of the candidates participating in the elections and the eligible
voters have been seriously affected by the illegalities and irregularities committed by the
respondents, as referred to herein above, therefore, this Court has jurisdiction under Article 199
of the Constitution of Islamic Republic of Pakistan, 1973, to redress the grievance of the
petitioners and to declare the impugned elections of the Sindh Bar Council, held on 8.11.2014, in
violation of law, rules and regulations, as null and void and to direct the official respondents to
hold fresh elections of Sindh Bar Council for the aforesaid period after complying with all the
legal formalities. In support of his contentions, the learned counsel relied on the following
reported judgments:

a) Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge, and others (1994
SCMR 1299),

b) Syed Zafar Ali Shah v. Hamid Khan and others (1992 CLC 665),

c) Muhammad Saleem v. Provincial Election Authority Sindh and others (PLD 1985
(Kar.) 135),

d) Muhammad Baran and others v. Member, Settlement and Rehabilitation and

others (PLD 1991 SC 691),

e) Lt. Col. Farzand Ali and others v. Province of West Pakistan (PLD 1970 SC 98),

f) Chaudhry Salahuddin, MLA v. Haji Ghulam Muhammad and others (PLD 1957
(WP) Lah. 728),

g) Muhammad Tariq Malik v. Pakistan through Secretary Establishment and others

(PLD 2014 Isl. 38),

h) Sanaullah Khan Gandapur v. Advocate General, NWFP and others (1995 SCMR
79),

i) Rana Moen Akhtar v. Additional Collector, Customs (SBLR 2015 Sindh 01).

j) Allah Ditta v. Muhammad Munir and others (PLD 1966 (WP) Lah. 770),
 k) Muhammad Mustafa v. Syed Zafar Ali Shah and others (PLD 2014 Sindh 224),

l) In the matter of Human Rights Case Nos. 4668 of 2006, 1111 of 2007 and 15283-
G of 2010 (PLD 2010 SC 759), and

m) Islamic Republic of Pakistan v. Israrul Haq and others (PLD 1981 SC 531).

4. Pursuant to Court's notice, comments/objections have been filed on behalf of official

respondents as well as some of the private respondent i.e. the Advocates who participated in the
impugned elections. Mr. Mustafa Lakhani, advocate, representing respondent No.21, while
making his submissions on behalf of the private respondents, has seriously controverted the
submissions made by the learned counsel for the petitioners and has raised an objection as to the
maintainability of instant petition on the ground that the petition involves seriously disputed
facts, whereas, alternate remedy by way of filing an election petition before the election tribunal
under rule 61 of the Rules, 1976 has not been availed by the petitioners. Per learned counsel,
after completion of entire election process and voting on 8.11.2014, the petitioners have raised
false and frivolous grounds for disputing the elections without any material or evidence in
support of their allegations. Learned counsel for the respondents argued that entire mechanism
for redressal of grievance relating to election disputes has been provided in terms of rules 61, 62
and 63 of the Rules, 1976, whereby disputes relating to elections can be agitated and resolved
through a self-contained mechanism. It has been further argued that no violation of any law,
rules or regulations has been committed by the respondents, whereas, the entire process of the
election was transparent and no objection in this regard whatsoever was filed by the said
petitioners till the day of election. As regards alleged violation of rule 13 of the Rules, 1976 by
the respondents, relating to publishing of final voters' list 30 days prior to the date of polling,
learned counsel for respondents has drawn our attention to the first proviso to sub-rule (1) of rule
13 of the Rules, 1976 which, according to the learned counsel for respondents, provides that the
Returning Officer has the power to add to the list till the date of polling. However, according to
the learned counsel for the respondents, the petitioners, after the completion of election process
and announcement of unofficial results of the elections, have filed the instant petition on
21.11.2014 by raising certain allegations which are not only factually incorrect but also have no
legal bearing or effect on the elections of Sindh Bar Council for the period 2015-19. It has been
contended by the learned counsel for the respondents that the allegations as regards the sudden
change of venue of polling from District Courts Malir to new High Court building is also
contrary to the facts as about five candidates who were taking part in the said elections at District
Bar Malir themselves requested the respondent No. 2 for such change to facilitate voters of Malir
District which request, though earlier rejected by the respondent No.2, was allowed in view of
the permission granted by the Hon'ble Chief Justice of the High Court of Sindh to enable the
members of Malir District Bar to cast their votes at the new High Court Building, whereas, the
voters of District Bar Malir did cast their votes on the day of election at the said premises hence,
such change of polling station did not otherwise had any adverse impact on the overall elections
of Sindh Bar Council. Per learned counsel, no voter from District Bar Council Malir has come
forward to allege that he could not cast his vote in view of the aforesaid change of poling station
nor the petitioner could establish as to how only they have been affected by such change of
polling station. According to the learned counsel, in election by secret balloting nobody knows as
to whom a voter would cast his vote on the day of election. It is further contended by learned
counsel for respondents that the total registered voters are 6100 and out of this about 3300 voters
have cast their votes in the aforesaid election which is more than 50% turn out of voters,
whereas, according to the learned counsel, out of 263 registered voters in the High Court about
207 voters have cast their votes. Per learned counsel, the petitioners have no locus standi to
impugn the entire election process which, otherwise, did not suffer from any illegality or
irregularity and was conducted in a transparent manner. Per learned counsel, the petitioners, after
having come to know about their defeat in the aforesaid elections through unofficial results, have
filed instant petition on false and flimsy grounds, which is liable to be dismissed in limine. Per
learned counsel, even otherwise, large number of voters and candidates who participated in the
aforesaid elections by exercising their right of franchise cannot be deprived of such right on mere
false allegations, whereas, according to the learned counsel for the respondents, through various
judgments of the Hon'ble Supreme Court as well as this Court, such practice of disputing or
challenging election process by directly filing a Constitutional petition in High Court(s), has
been deprecated. In support of his contentions, learned counsel has placed reliance on Munir A.
Malik v. Malik Muhammad Qayyum and others (PLD 2007 SC 262) and Tariq Mehmood A.
Khan and another v. Sindh Bar Council (2012 SCMR 702).

5. Messrs Muhammad Aqil, Salahuddin, Irfan Ahmed Siddiqui, advocate for respondent
No. 40, Ms. Farkhunda Jabeen, advocate for respondent No. 50, and Mr. Hakim Ali Shaikh,
advocate for respondent No.7, adopted the arguments advanced by Mr. Mustafa Lakhani,
advocate. However, Mr. Salahuddin, advocate also added to such arguments and submitted that
most of the facts, as stated in the petition, have been seriously disputed and denied by the private
as well as the official respondents by filing their comments/objections/counter affidavits,
therefore, according to the learned counsel, on the basis of such disputed facts, the petitioners are
not entitled to any equitable relief from this Court under its Constitutional jurisdiction. It has
been further contended by the learned counsel that the petitioners have mainly disputed the
change of venue of polling station from District Courts Malir to the new High Court Building by
alleging that the voters of Malir District could not cast their votes, whereas, according to the
learned counsel, such votes cannot be separated as every voter of Karachi Division was required
to cast 16 votes, as detailed above, therefore, according to the learned counsel, no interference on
the basis of aforesaid allegations can be made by this Court, as it would vitiate the entire election
process and would disenfranchise the voters. Learned counsel for the respondent further
submitted that even the order for the change of venue of polling from District Courts Malir to the
new building of Sindh High Court, vide letter dated 6.11.2014, was not objected to by the
petitioners or any of the voters till the date of polling, whereas, such objection appears to have
been raised, for the first time, on 11.11.2014, whereas, instant petition was filed on 21.11.2014
after the announcement of unofficial results of the elections. The petitioners, admittedly, could
not succeed in the aforesaid elections, therefore, they have chosen to file instant frivolous
petition to challenge the entire election. Learned counsel further submitted that the margin of
votes secured by the returned candidate from District Malir i.e. Mr.Amanullah, Advocate and
Mr. Ashraf Sammo, Advocate, who participated in the aforesaid elections from District-Malir, is
more than the total number of voters who did not cast their votes from District Malir. Therefore,
according to the learned counsel, it would, even otherwise, have no bearing on the result of the
election. Learned counsel for the respondents also referred to rule 5(1)(h) of the Rules 1976 and
contended that validity of election of either one member or more than one member can be
challenged by approaching the election tribunal under rule 61 of the Rules, 1976. Therefore, per
learned counsel, instant petition is misconceived in facts and law and is liable to be dismissed. In
support of his submissions, learned counsel relied on Sanaullah Khan Gandapur v. Advocate
General, NWFP/Returning Officer and others (PLD 1997 Pesh. 80), and Javed Iqbal and another
v. Returning Officer and others (PLD 2005 Quetta 121).

6. Mr. Saifullah, learned AAG, while defending the official respondents, has submitted that
during the entire election process of Sindh Bar Council for the period 2015-19, held on
8.11.2014, no complaint was filed by the petitioners before the polling office or the returning
officer in terms of rule 17(1) read with rule 25 of the Rules, 1976, whereas, according to learned
AAG, the elections were held after having complied with all the legal formalities and by
adopting the procedure provided under the Rules, 1976. It has been further contended by learned
AAG that the petitioners have not placed on record any proof, document or material which may
support their allegation regarding rigging in the elections or bogus voting on the fateful day of
election of Sindh Bar Council. Whereas, baseless allegations have been levelled by the
petitioners against the respondents on such disputed facts which, even otherwise, cannot be
examined by this Court while exercising its Constitutional jurisdiction under Article 199 of the
Constitution. It has been further contended that the petitioners have not availed the remedy
provided under rule 61 of the Rules, 1976. It has been prayed that this petition may be dismissed.

7. It will not be out of place to refer to the comments filed on behalf of respondent No.1, i.e.
Secretary, Sindh Bar Council wherein it has been stated that the entire election process was
transparent whereas no objection whatsoever was received from any of the petitioners or the
contesting candidates before completion of the election process. It has been further stated that
pursuant to the order dated 25.11.2014 of this Court, the Returning Officer started official
counting process on 26.11.2014 in the presence of the candidates and their agents, whereas, all
the bags numbering 22 of polling stations of Karachi Division were shown to the candidates and
their agents. It has been further stated that during this process it transpired that all the bags were
found duly sealed, except one bag of polling station No. 21, which was although partly sealed
but was open from one side. It has been further stated that there was no discrepancy between
unofficial counting of votes and the official accounting of votes which was done in presences of
all the candidates and their polling agents. It has been further emphasised in the comments by
respondent No.1 that during the above election process and counting of votes in the presence of
candidates and their agents no complaint whatsoever was received by the official respondents
whereas allegations in the petitions, besides being false and frivolous, were raised by the losing
candidates after announcement of results.

8. We have heard the learned counsel for the petitioners and respondents, learned AAG and
also carefully examined the contents of the petition, its replies by the respondents as well as the
affidavits and counter affidavits filed by the parties during the course of hearing of this petition.

9. Perusal of record shows that certain disputed facts have been agitated by the petitioners
through instant petition, which have been seriously controverted and denied by the official
respondents as well as the private respondents i.e. the returned candidates who participated in the
above elections of Sindh Bar Council. It has also come on record that during the entire process of
holding the elections, till its culmination on the day of polling on 8.11.2014, no objection
whatsoever relating to election process was raised either by the petitioners or any of the
candidates who participated in the aforesaid elections, whereas, admittedly, after completion of
the election process and announcement of unofficial results, objection regarding change of
polling station from District Courts Malir to new building of the High Court of Sindh was raised
by some of the candidates of Malir District for the first time on 11.11.2014 whereafter instant
petition was filed on 21.11.2014 wherein allegation regarding violation of rules 11 and 13 of the
Rules, 1976 have been raised and it has been alleged that the election was rigged. Reference to
rules 19(c), 20(1), 22(1) and (3), 24 and 25(3) of the Rules, 1976 has also been made in the
memo of petition, however, learned counsel for the petitioners could not bring anything on
record to substantiate the allegation regarding violation of the aforesaid rules by the respondents
in the impugned elections.

10. The main grievance expressed by the learned counsel for the petitioners relates to alleged
violation of rules 11 and 13 of the Rules, 1976 as, according to the leaned counsel, the abrupt
change of polling stations Nos. 21 and 22 from District Court Malir to new building of the High
Court, without notice to the candidates, only two days before the date of polling, has rendered
the entire election process as null and void and of no legal effect. It will be advantageous if rule
13(1) of the Rules, 1976 is reproduced hereunder:

"13.(1) The Returning Office shall publish, at least 30 days before the polling, a list of
voters showing at which polling station a particular voter shall cast his vote.

Provided that the Returning Officer shall have the power to add to the list till the polling
is held:"

11. From perusal of the hereinabove rule 13(1) of the Rules, 1976 it appears that the
Returning Officer is required to publish, at least 30 days before the polling, a list of voters,
showing at this polling station a particular voter should cast his vote. However, it has been
further provided under the first proviso to the said rules that the Returning Officer shall have the
power to add to the list till the polling is held.

12. The rules framed by the Sindh Bar Council for holding elections are meant to facilitate
transparent and smooth elections whereas the ultimate purpose of framing the said rules is that
all the eligible candidates of Sindh Bar Council shall be provided equal opportunity to participate
in the election process by contesting elections or to cast their votes to the candidate of their
choice on the day of polling. The above rule 13 of the Rules, 1976, in fact, regulates the list of
eligible voters who may cast their votes on the polling day at a nominated polling station(s)
whereas, the Returning Officer has been fully authorized to add to the list names of eligible
voters till the day of polling. Through instant petition no voter has come forward to allege that
either his name was not included in the eligible voters list or on account of change of polling
station from District Courts Malir to new building at High Court of Sindh, he could not cast his
vote to the candidate(s) of his choice. The voting ratio, otherwise, reflects that more than 50% of
the voters have cast their votes whereas such ratio is increased in the case of voters of Malir
District. It has also come on record that difference in the votes secured by the returned candidate
from Malir District and petitioner No.1, Mr. Ashraf Sammo is more than the total number of
remaining votes of District Malir, hence, would not even otherwise have any effect on the result
of the election even if it is assumed that all the remaining votes would have been polled in favour
of Mr. Samoo.

13. It has further been observed that the allegation raised through instant petition regarding
violation of certain rules of Rules, 1976 was not raised at the relevant point of time before the
Returning Officer during the election process. Further, admittedly, no objection whatsoever was
raised by the petitioners till conclusion of election process on 8.11.2014, only after unofficial
results of the elections were announced, some of the petitioners raised objection only to the
extent of alleged violation of rule 13 i.e. change of venue of polling station for Malir District
from District Courts Malir to new building High Court building. Counting of all the 22 polling
bags was done in front of all the candidates and their polling agents, which were found to be duly
sealed and no objection in this regard, except in relation to one of such polling bags, which was
partly sealed, was raised by any of the candidates who participated in the aforesaid elections. No
material whatsoever has been placed before this court by the petitioners which may suggest that
the entire election process of Sindh Bar Council for the period 2015-19 was illegal or the
elections were rigged. On the contrary, it has come on record that till conclusion of the election
on the fateful day i.e. 8.11.2014, no objection whatsoever was raised by any of the candidates
relating to validity of the elections.

14. As regards the identification of voters who cast their votes on the day of polling, it has
been observed that no objection whatsoever was raised by the petitioners or their agents
regarding identification of any of the voters who, otherwise, are all practicing Advocates and are
known to each other. Therefore, the relaxation of the condition of producing the card issued by
Sindh Bar Council by the respondent No.2 and that too, by consent of all the candidates, and
allowing identification of voters through any other mode of identification, including production
of CNIC and the card of High Court Bar Association etc. for identification purpose, cannot be
regarded as illegal or violation of rules as alleged by the petitioners.

15. We are of the considered opinion that generalized and vague allegations have been raised
by the petitioners without any material or substance, after completion of the entire election
process and announcement of unofficial results, whereas most of the facts as stated in the memo
of petition have been seriously disputed and denied by the official respondents as well as private
respondents through their affidavits which, otherwise, require evidence, hence cannot be
examined by this Court while exercising its Constitutional jurisdiction under Article 199 of the
Constitution.

16. Moreover, the grievance expressed through instant petition, otherwise, could have been
agitated by the petitioner at the relevant point of time in terms of rules 61 to 65 of the Rules,
1976 before the Election Tribunal instead of directly approaching this Court by invoking
provisions of Article 199 of the Constitution. It would be advantageous to reproduce the relevant
rules 61 to 65 , which read as under:

"61. An objection to the election under paragraph (h) of sub-rule (1) of rule 5 or under
paragraph (h) of sub-rule (1) of rule 30, may be filed by any candidate at the election or
by any five voters to contest the validity of the election of a candidate, by letter signed
and delivered to the Chairman of the Bar Council who shall refer such objection to the
 Election Tribunal concerned for disposal within fifteen days of the date fixed for filing
objections. The objection shall be accompanied by a deposit of Rs.100.

62. The letter shall state clearly the grounds upon which the validity of the election is
challenged.

63. The objections to the validity of an election of a member shall be heard by the
Election Tribunal concerned.

64. The election shall be set aside if the Tribunal finds that an irregularity which has
materially affected the result of the election or an illegality has been committed.

65. No irregularity in any proceeding, not even a change of date, as stated in the
programme, if such change be due to unavoidable reasons, shall invalidate any
proceeding, if it does not materially affect the result of the election."

17. From perusal of above quoted rules, it is clear that an objection to the election can be
raised before the Election Tribunal provided under aforesaid rules, whereas, the Election
Tribunal, constituted for such purpose, is competent to decide all such election disputes either in
respect of one member or more than one member. The term 'member' as used in the aforesaid
rules does not refer to only a singular member, as such interpretation would lead to restricting the
scope and mandate of Election Tribunal for redressal of grievance in respect of election disputes.
Moreover, in terms of section 12 of the West Pakistan General Clauses Act, 1956 "words in
singular would include the plural and vice versa". It will not be out of place to refer to the
hereinabove provisions of rule 65 of the Rules, 1976, which provide that even an irregularity in
proceedings, including a change of date of election, would not invalidate the elections if it does
not materially affect the result of the election.

18. We may further observe that the petitioners have not been able to demonstrate through
evidence nor could produce any material which may suggest that any such illegality or
irregularity has been committed by the official respondents during the election process which has
materially affected the result of the impugned elections. While invoking the jurisdiction of this
Court under Article 199 of the Constitution, the petitioner has to satisfy that the petitioner is an
aggrieved party either seeking enforcement of any of the fundamental rights conferred by
Chapter I of Part II of the Constitution, or he is aggrieved by an act done or proceeding taken
within the territorial jurisdiction of the Court by a person performing functions in connection
with the affairs of the Federation, a province or a local authority, by showing that the act done or
proceeding taken is without lawful authority, whereas, there is no adequate remedy provided
under law for redressal of such grievance.

19. In the instant case, the petitioners could not refer to any illegality or irregularity which
may require this Court to interfere in the election process, particularly, in view of seriously
disputed facts and availability of alternate remedy provided in terms of the Rules, 1976.

20. We are, also mindful of the fact that right of franchise is a substantial legal right,
therefore, the process of election, in the absence of any express violation of law or the relevant
rules, cannot be hampered or disturbed on mere allegations, by this Court while exercising its
constitutional jurisdiction under Article 199 of the Constitution, particularly when certain
disputed facts have been agitated in the petition. We may further observe that the parties hereto
being practicing Advocates ought to have resolved their disputes through their own forum in
terms of Pakistan Legal Practitioners and Bar Councils Act and the Rules framed thereunder,
whereby, a domestic alternate remedy has been provided to the aggrieved person for resolution
of election disputes, instead of directly approaching this Court through instant petition by
invoking the constitutional jurisdiction of this Court. Reference in this regard can be made to the
decision of Hon'ble Supreme Court in the case of Tariq Mehmood A. Khan and another v. Sindh
Bar Council (2012 SCMR 702) wherein the issue of maintainability of constitutional petition
under Article 199 of the Constitution relating to election disputes has been dealt with by the
Hon'ble Supreme Court of Pakistan. We may further rely on the case of Javed Iqbal and another
v. Returning Officer and others (PLD 2008 Quetta 121), wherein it has been held that
"Constitutional jurisdiction under Article 199 cannot primarily be invoked for making probe into
controversial facts based on two conflicting documents as equitable relief sought for resulting
into disfranchising the candidate cannot be availed." Similarly, in the case reported as Sanaullah
Khan Gandapur v. Advocate General, NWFP/Returning Officer and others (PLD 1997 Pesh. 80),
it has been held that where any irregularity had taken place during process of election of
Provincial Bar Council materially affecting result thereof; same had to be resolved by Election
Tribunal being the only forum provided for election disputes by the Pakistan Legal Practitioners
and Bar Councils Rules, 1976.

21. We may observe with respect that the case law relied upon by the learned counsel for the
petitioners is not relevant to the subject controversy, hence of no assistance to the petitioners'
case.

22. In view of the hereinabove facts and circumstances of the case, we are of the opinion that
the above petition is misconceived in facts and law, which is hereby dismissed along with listed
applications.

MH/M-77/Sindh Petition dismissed.

P L D 2016 Sindh 557

Before Muhammad Ali Mazhar and Anwar Hussain, JJ

KHURRAM and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary/Chairman and others---Respondents

C.Ps. Nos. 209, 913 and 1092 of 2015, decided on 14th May, 2016.
(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan
Legal Practitioners and Bar Councils (Amendment) Rules, 2013]----

----Rr. 108-C, 108-B & 108-A----Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss.
9, 13, 26 & 55---Constitution of Pakistan, Arts.18 & 60---SRO No.184(II)2013 dated
08.03.2013---Persons qualified for admission as advocates---Assessment/NTS test, legality of---
Functions of Pakistan Bar Council/Provincial Bar Councils---Scope---Power of Pakistan Bar
Council to make rules---Severability, doctrine of---Applicability---Freedom of trade, business,
profession, etc.---Scope---Petitioners challenged R. 108-C, proviso of Pakistan Legal
Practitioners and Bar Councils Rules, 1976, whereby the admission/enrollment as an advocate
had been pre-conditioned with passing of a mandatory assessment test to be conducted by the
National Testing Services (NTS)---Petitioners contended that the Pakistan Bar Council had no
jurisdiction to make any such rule being inconsistent with S.26 of Legal Practitioners and Bar
Councils Act, 1973---Validity---Under S.26 (d) of Legal Practitioners and Bar Councils Act,
1973, one of the prerequisites provided for admission as an advocate was that the applicant had
undergone such course of training and passed such examination after the training as might be
prescribed by the Pakistan Bar Council---Rule 108-B of the Rules catalogued the formalities and
prerequisites of the application, including a certificate/result card issued by the NTS or any other
authority duly notified by Pakistan Bar Council---Pakistan Bar Council had assigned the NTS
with responsibility to conduct 'LAW Graduate Assessment Test' (LAW-GAT), which was not
violative of any law except that the same was an agreement and arrangement which might be
determined at any time by the parties in accordance with the terms of the engagement if any---
Section 55 of the Act provided for the various rule-making powers which were also included in
the functions of Pakistan Bar Council under S. 13 of the Act including the rule-making power for
general principle and for guidance of the Provincial Bar Councils---Applicability of S. 26 of the
Act emanated and cropped up only after completion of pupilage and not prior thereto---Article
18 of the Constitution had not prevented the regulation of any trade or profession by licensing
system---Right to join any profession etc. was not an absolute right and the same was liable to
certain restrictions---To join legal profession was although a fundamental right but to become an
advocate on one's own terms and conditions was not the fundamental right and he had to follow
all the procedural requirements---Rule 108-C, proviso of Pakistan Legal Practitioners and Bar
Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils
(Amendment) Rules, 2013] was not in derogation of the substantive provisions of the Act nor the
same was repugnant nor militates or rendered the provisions of the Act ineffective; rather the
provisions of the Act and that of the Rules both could stand together and there was no conflict in
which circumstances the Rules must give way to the provisions of the Act---Doctrine of
severability permitted the Court to sever the unconstitutional portion of a partially
unconstitutional statute to preserve the operation of any uncontested or valid remainder---Rule
108-B(1) of the Rules merely expressed a formality to attach certificate/result card issued by the
NTS or any other authority duly notified by the Pakistan Bar Council, as to applicant's having
passed the assessment test; therefore, the same had not adverse repercussions or ramifications---
High Court, therefore, declared the impugned rule and the assessment test conducted therein as
valid and in accordance with the provisions of the Legal Practitioners and Bar Councils Act,
1973---Constitutional petitions were dismissed---Principles.
 Under Section 26(d) of Legal Practitioners and Bar Councils Act, 1973, one of the
prerequisites provided for admission as an advocate was that the applicant had undergone such
course of training and passed such examination after the training as might be prescribed by the
Pakistan Bar Council. Rule 108-A of Pakistan Legal Practitioners and Bar Councils Rules, 1976
[As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013]
postulated that any person qualified to be admitted as an advocate under Section 26 of the Act
might make an application in Form 'A' prescribed by the Pakistan Bar Council for admission as
an advocate to the Provincial Bar Council within whose jurisdiction he proposed to practice
generally. Rule 108-B of the Rules catalogued the formalities and prerequisites of the
application, including a certificate/result card issued by the NTS or any other authority duly
notified by Pakistan Bar Council, as to show that the applicant had passed the assessment test as
laid down in Rule 108-B(1) of the Rules.

National Testing Service had not been constituted under any statute, and it was only a
service provider venture, which arranged facility and infrastructure to make easy and facilitate
the required assessment or aptitude test. Pakistan Bar Council had assigned the NTS with
responsibility to conduct 'LAW Graduate Assessment Test' (LAW-GAT). Pakistan Bar Council
had made arrangement of the assessment test through the NTS, which by all means was a
contractual engagement between a service provider and the apex body of all the Provincial Bar
Councils; thus, such an engagement was not violative of any law except that the same was an
agreement and arrangement which might be determined at any time by the parties in accordance
with the terms of the engagement if any.

Section 13 of Legal Practitioners and Bar Councils Act, 1973 provided for functions of
the Pakistan Bar Council, which included to lay down standards of professional conduct and
etiquette for advocates, to promote and suggest law reforms, to exercise general control and
supervision over the Provincial Bar Councils and to issue directions to them from time to time to
promote legal education, prescribe standards of such education in consultation with the
universities in Pakistan and the Provincial Bar Councils, to recognize universities whose degrees
in law would be qualification for enrolment as an advocate and to do all things necessary for
discharging the functions. Likewise, section 9 of the Act provided for the function of the
Provincial Bar Councils. Section 55 of the Act provided for the various rule-making powers
which were also included in the functions of Pakistan Bar Council under Section 13 of the Act
including the rule-making power for general principles and for guidance of the Provincial Bar
Councils. Provincial Bar Councils had to work together within the framework of the provisions
of the Act, wherein each Bar Council had been invested with the powers to deal with the affairs
of the advocates while the Pakistan Bar Council being the appellate and supervisory body of all
the Provincial Bar Councils stood on a higher pedestal.

S.M. Gharib Nawaz Daccawala v. Sindh Bar Council and another PLD 2001 SC 84 rel.

Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan
Legal Practitioners and Bar Councils (Amendment) Rules, 2013] could not go beyond the scope
of Legal Practitioners and Bar Councils Act, 1973, and examination of the amendment to
recapitulate whether the Rules made was inconsistent with or in derogation of substantive
provisions of the law or statute was not beyond the province of the court. Section 26 of the Act
provided certain qualifications for admission as an advocate but the same came in the way only
after filing intimation and undergone such course of training and pass examination after the
training as might be prescribed by the Pakistan Bar Council. No separate or independent
provision specified itself under the Act as to how a new entrant might file his Intimation Form
and what further formalities he had to meet with at the time of filing the intimation or even what
requirements he had to fulfil and comply with after completion of his pupilage; all those
peculiarities and procedure were provided under the Rules framed by the Pakistan Bar Council.
Applicability of Section 26 of the Act emanated and cropped up only after completion of
pupilage and not prior thereto.

Requirement of assessment test naturally ensured at very initial stage when a person after
passing LLB final examination decided to join the legal profession. Article 18 of the Constitution
had not prevented the regulation of any trade or profession by licensing system. Expression
'subject to qualification if any as may be prescribed by law' connoted that the State or the
competent authority in law could regulate any trade, profession or business. Right to join any
profession etc. was, therefore, not an absolute right and the same was liable to certain
restrictions. To join legal profession was although a fundamental right but to become an
advocate on one's own terms and conditions was not the fundamental right and he had to follow
all the procedural requirements.

Bar Councils had created a concept of assessment test under Pakistan Legal Practitioners
and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils
(Amendment) Rules, 2013] and Legal Practitioners and Bar Councils Act, 1973, which was not
derogatory or inconsistent with the Act nor did the same violate or militate the fundamental right
of any person. Pakistan Bar Council and the Provincial Bar Councils had to formulate and
compose all the best possible efforts to maintain the high standards and benchmarks for the noble
profession of law and that was their onerous duty to apply assessment test as a precondition of
'Intimation Form' to sift and screen the right and deserving persons so that they might maintain
the decorum and high standard of the legal profession as the true successors of their exalted
vocation for which assessment test was an excellent device and yardstick.

Rule 108-C, proviso of Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As
amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013] was not
in derogation of the substantive provisions of the Act nor the same was repugnant nor militates
or rendered the provisions of the Act ineffective; rather the provisions of the Act and that of the
Rules both could stand together and there was no conflict in which circumstances the Rules must
give way to the provisions of the Act. Introduction of the assessment test for new entrants also
did not violate or contravene any fundamental right of any person nor was the same
discriminatory to any individual, and rather the same was applicable across the board with a
broad spectrum. Curriculum of the assessment test showed that it had virtuously confined and
restricted to the subject of law and that was not conceivable that a contender who had appeared
in various subjects of law and passed his LL.B. final examination could not sit and solve the
assessment paper.

Doctrine of severability permitted the Court to severe the unconstitutional portion of a

partially unconstitutional statute in order to preserve the operation of any uncontested or valid
remainder, but if the valid portion was so closely mixed up with the invalid portion that it could
not be separated without leaving an incomplete or more or less mixed remainder, the court would
declare the entire Act void. No such situation had arisen in the present case to declare the Rule
108-C, proviso of Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by
Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013] as void. Rules framed
under the delegated legislation could easily be adjusted in the light of experience of its working
which had been done by the Pakistan Bar Council, which was a rule-making authority. Present
case was not regarding that the provisions of Section 26 of the Act and Rule 108-C, proviso of
the Rules were so inextricably mixed up that they could not be separated from one another so
that the invalidity of a portion must result in the invalidity of the Act in its entirety; on the other
hand, both were distinct and separate. Doctrine of severability was, therefore, not applicable in
the present case for the court to preserve the operation of any uncontested or valid remainder and
declare Rule 108-C, proviso of the Rules in derogation of the substantive provisions of the Act.
Rule 108-B(1) of the Rules merely expressed a formality to attach certificate/result card issued
by the NTS or any other authority duly notified by the Pakistan Bar Council, as to applicant's
having passed the assessment test; therefore, the same had no adverse repercussions or
ramifications.

M.Q.M. and others v. Province of Sindh and others AIR(sic) 1957 SC 628 rel.

High Court provided that the intimation forms already accepted by the Sindh Bar Council
in view of the earlier decision of the Executive Committee of the Council would not be subject to
the assessment test at that stage, and that in future all intimation forms would be accepted after
fulfilling the requirement of Assessment Test as envisaged under Rule 108-C of Pakistan Legal
Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar
Councils (Amendment) Rules, 2013]. Constitutional petitions were dismissed in circumstances.

Province of East Pakistan and another v. Nur Ahmed and another PLD 1964 SC 451;
Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806;
Suo Motu Case No.11 of 2011 (PLD 2014 SC 389); Suo Motu Case No.13 of 2009 (PLD 2011
SC 619); Pakistan Bar Council v. Federal Government and others PLD 2007 SC 394; Qaiser
Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846; Khursheed Ahmed Junejo and
others v. Government of Sindh and others 2005 MLD 1724; M.Q.M. and others v. Province of
Sindh and others 2014 CLC 335 and AIR(sic) 1957 SC 628 ref.

(b) Words and phrases---

----'Lawful'---Meaning.

(c) Words and phrases---

----'Profession'----Meaning and scope.

Judicial Review of Public Actions by Justice (R) Fazal Karim (page 719, Chap. 10,
Vol.1) rel.
(d) Words and phrases---

----'Occupation'---Meaning and scope.

Judicial Review of Public Actions by Justice (R) Fazal Karim (page 719, Chap. 10,
Vol.1) rel.

(e) Words and phrases---

----'Legal profession'---Definition and historical background.

http://www.britannica.com/topic/legal-profession rel.

(f) Words and phrases---

----'Aptitude test'---Meaning and scope.

AIR 1957 SC 628; http://www.britannica.com/topic/legal-profession; Kamran Shehzad

Siddiqui and 2 others v. Administration Committee and 2 others 2010 PLC (C.S.) 957; Miss
Hina Javed v. Government of N.-W.F.P. 1998 SCMR 1469; S.M. Gharib Nawaz Daccawala v.
Sindh Bar Council and another PLD 2001 SC 84; Judicial Review of Public Actions by Justice
(R) Fazal Karim (Page 719, Chap. 10, Vol 1); Judicial Review of Public Actions by Justice (R)
Fazal Karim, Chap. 3, page 1281, Vol.2 and Bennion on Statutory Interpretation, Fifth Edn.
(Comment on Code S.59, Page 263) and Justice G.P. Singh, in his book "Principles of Statutory
Interpretation 12th Edn. 2010, P.1051. rel.

(g) Interpretation of statutes---

----Subordinate legislation----Scope---Subordinate legislation must, in order to be law, and in

order to be valid, depended on an Act.

Judicial Review of Public Actions by Justice (R) Fazal Karim, Chap. 3, page 1281, Vol.2
rel.

(h) Interpretation of statutes---

----Rules/bye-laws/forms---Rule of construction---Scope.

Bennion on Statutory Interpretation, Fifth Edn. (Comment on Code S.59, Page 263) and
Justice G.P.Singh, in his book Principles of Statutory Interpretation 12th Edn. 2010, P.1051. rel.

(i) Interpretation of statutes---

----Rules/bye-laws/forms---Scope and object.

 Bennion on Statutory Interpretation, Fifth Edn. (Comment on Code S 59, Page 263) and
Justice G.P.Singh, in his book Principles of Statutory Interpretation 12th Edn. 2010, P.1051. rel.

(j) Interpretation of statutes---

----Delegated legislation---Scope and object.

Bennion on Statutory Interpretation, Fifth Edn. (Comment on Code S 59, Page 263) and
Justice G.P.Singh, in his book Principles of Statutory Interpretation 12th Edn. 2010, P.1051. rel.

(k) Interpretation of statutes---

----'Primary legislation'/subordinate/delegated legislation'---Distinction, requirements and object.

Judicial Review of Public Actions by Justice (R) Fazal Karim, Chap. 3, page 1281, Vol.2
rel.

(l) Interpretation of statutes---

----Ultra vires, theory of----Scope and test.

(m) Severability, doctrine of---

----Scope and object.

Ms. Mehreen Ibrahim and Shajee Siddiqui for Petitioner (in C.P. No.D-209) of 2015.

Khaleeq Ahmed and Ms. Rozina Essa for Petitioner (in C.P. No.D-913) of 2015.

Aga Zafar Ahmed and Fasih-ur-Zaman Abbasi for Petitioner (in C.P. No.D-1092) of
2015.

Abrar Hassan, Syed Masroor Ahmed Alvi and Mir Arif Ali Talpur for Pakistan Bar
Council.

Salahuddin Ahmed and Nadeem Ahmed for Sindh Bar Council.

Shaikh Liaquat Hussain, Standing Counsel.

Adnan Karim, A.A.G.

Date of hearing: 23rd February, 2016.

ORDER
 MUHAMMAD ALI MAZHAR, J.--The aforementioned constitution petitions have
been brought to challenge a proviso integrated and assimilated in Rule 108-C of Pakistan Legal
Practitioners and Bar Councils Rules 1976 through Pakistan Legal Practitioners and Bar
Councils (Amendment) Rules, 2013.

2. The factual matrix of the petitions is that after passing LL.B, all the petitioners applied to
join legal profession and filed intimation but they were called upon to appear in the assessment
test in terms of proviso incorporated under the Rule 108-C of Pakistan Legal Practitioners and
Bar Councils Rules, 1976. The petitioners have come up with this certitude that Pakistan Bar
Council has no jurisdiction or authority to make any rule inconsistent with Section 26 of the
Legal Practitioners and Bar Councils Act, 1973. On 16.3.2015, Constitution Petition No.D-
913/2015 was fixed before the learned division bench of this court when without prejudice to the
case of any of the parties, the learned bench suspended the operation of impugned Notification.

3. The learned counsel for the petitioners argued that the amendments made in the Rules by
Pakistan Bar Council are in deviation with the Legal Practitioners and Bar Councils Act, 1973.
Pakistan Bar Council under Section 55 of the Legal Practitioners and Bar Councils Act, 1973 has
no power to make rules for introducing any assessment test or NTS. In fact the amendments
made in the Rules are in conflict with the provisions made under Section 26 of the Legal
Practitioners and Bar Councils Act, 1973. It was further averred that the respondents cannot
adopt the assessment test which is not recognized by Higher Education Commission of Pakistan.
It was next contended that Pakistan Bar Council in order to discourage the students and to create
a monopoly of the existing advocates has introduced these amendments contrary to the parent
Act. It was further argued that the rule making authority cannot frame rules in derogation of
substantial provisions of law as it is well settled that rules cannot go beyond the scope of Act.
The main object of the rules is to implement the provisions of Act and not to create a new
situation altogether.

4. They further argued that by virtue of SRO No.184(II) 2013 dated 8.3.2013 impugned
proviso has been added which made assessment test mandatory before commencing the pupilage
and filing intimation which is ultra vires to the Act. Though under Section 26 (d) of the Legal
Practitioners and Bar Councils Act, 1973, one of the qualifications to become an advocate is
undergoing such course of training and pass such examination after the training as may be
prescribed by Pakistan Bar Council so in these parameters, Pakistan Bar Council may prescribe
any examination after completion of training and not before. Learned counsel further argued that
if the conditions mentioned in the Rule 108-B are taken into consideration, it is clear that a
person can only fulfill these conditions after six months training era but in this Rule also clause
(1) has been incorporated which provides a new condition to comply with that on filing
application result card issued by NTS or any other authority notified by the Pakistan Bar Council
is required to be attached to show that the applicant has passed the assessment test. They also
questioned the veracity and authenticity of NTS assessment test. The learned counsel for the
petitioners placed reliance on PLD 1964 SC 451 (Province of East Pakistan and another v. Nur
Ahmed and another), 2001 SCMR 1806 (M/s. Mehraj Flour Mills and others v. Provincial
Government and others), PLD 2014 SC 389 (Suo Motu Case No.11 of 2011), PLD 2011
Supreme Court 619 (Suo Motu Case No.l3 of 2009).
5. Mr. Abrar Hasan, learned counsel for Pakistan Bar Council referred to Section 26(d) of
Legal Practitioners and Bar Councils Act, 1973 and argued that under this clause Pakistan Bar
Council may prescribe course of training and examination and under Section 55, Pakistan Bar
Council may make the rules. He further argued that since the standard of profession of law is
deteriorating day by day, therefore, in order to maintain high standard of legal profession, rules
have been amended with the effect that even at the time of filing intimation, a candidate has to
undergo an assessment test. He also referred to paragraph 7 of the Judgment passed by learned
Peshawar High Court in Writ Petition No.2525/2014 (Kashif Zaman v. K.P.K. Bar Council) and
argued that similar question was raised before the learned Peshawar High Court in which it was
held that the amendments in question are neither violative of the fundamental rights, nor do they
tantamount to denying the equality before law in terms of Article 25 of the Constitution. Learned
counsel made much emphasis that Pakistan Bar Council may frame rules relating to standard of
professional conduct and etiquette to be observed by the Advocates including the general
principle for guidance for the Provincial Bar Councils. Pakistan Bar Council may also frame
rules in relation to the standard of legal education to be observed by universities in Pakistan and
the inspection of universities for that purposes. He further argued that the amendments made in
the rules is not in conflict with the parent Act and Pakistan Bar Council within the sphere of their
powers rightly made the amendments so that before filing intimation form or to enter into a legal
profession the candidates must pass the assessment test though NTS. He also referred to PLD
2007 SC 394 (Pakistan Bar Council v. Federal Government and others).

6. Mr. Salahuddin Ahmed, learned counsel for Sindh Bar Council. argued that the NTS
examination was challenged in the Peshawar High Court in Writ Petition No.2217/2014 which
was partially accepted to the extent that syllabus of NTS examination should be amended. He
also referred to the counter affidavit filed for and on behalf of Sindh Bar Council that NTS
examination is adopted as pre-requisite for the enrolment of advocates due to the reasons that
law colleges are not maintaining proper standard and fake degree holders are proliferating and a
large number of law graduates are being enrolled without adequate legal knowledge and the
ultimate sufferers are the litigant public. The written and viva-voce being conducted by the
Provincial Bar Councils is insufficient. There is compelling need for maintaining nationwide
standard. When the amendment was introduced, Pakistan Bar Council directed the Sindh Bar
Council from 30.9.2013 onwards not to entertain any intimation form of the law graduates who
had not passed NTS Examination. Learned counsel however, argued that under Section 26 of
Legal Practitioners and Bar Councils Act, 1973 a provision of passing examination is available
but after the training while by virtue of amendment it has become mandatory for every fresh law
graduates to pass assessment test through NTS before filing the intimation Form. He referred to
Section 56 of the Legal Practitioners and Bar Councils Act, 1973 in which the Provincial Bar
Council may make rules including course of practical training in law and the examination to be
passed after such training for admission as an advocate

7. He further argued that Pakistan Bar Council made amendments after consultation with all
Provincial Bar Councils. After introducing the provision of assessment test, the percentage of
intimation forms was radically decreased. He further argued that the rule making power of Sindh
Bar Council vis-a-vis provision of post training examination for prospective advocates conferred
under Section 56 of the Legal Practitioners and Bar Councils Act, 1973 is complementary and
additional to the powers conferred upon the Pakistan Bar Council under Section 26 (d) of the
Act. It was further argued that the amendments made in the rules are to be interpreted
harmoniously, so this should not be rendered redundant and the case in hand the doctrine of
harmonious interpretation applies. It was further contended that Rule 108-C of the Pakistan
Legal Practitioners and Bar Councils Rules, 1976 is intra vires of Section 26 (d) of the Act.
However, his fall back argument was that if the said Rule is considered to be ultra vires, the only
part of the said Rule that could arguably be said to violate the parent Act is the portion that
"before commencing the pupilage and filing intimation to the Provincial Bar Council concerned"
which may be struck out and remainder be continued so that NTS Assessment may be conducted
after training. Learned counsel also referred to the doctrine of severability which permits a court
to sever unconstitutional portion of a statute in order to preserve the operation of an uncontested
or valid remainder. In support of his arguments, he referred to 2009 SCMR 846 (Qaiser Javed
Malik v. Pervaiz Hameed and 2 others), (2) 2005 MLD 1724 (Khursheed Ahmed Junejo and
others v. Government of Sindh and others), (3) 2014 CLC 335 (M.Q.M. and others v. Province
of Sindh and others) and (4) AIR(sic) 1957 SC 628.

8. The learned Standing Counsel adopted the arguments of Mr.Abrar Hasan and supported
the proviso added through the amendment made in Rule 108-C of Pakistan Legal Practitioners
and Bar Councils Rules, 1976, while learned AAG argued that the provision of assessment test
made in the aforesaid Rule should have been made effective after completion of pupilage and
filing of application under Section 26 of the Legal Practitioners and Bar Councils Act, 1973 and
he also supported the arguments advanced by Mr. Salahuddin Ahmed, counsel for Sindh Bar
Council.

[Note. All learned counsel agreed that the aforesaid petitions may be heard and decided at
katcha peshi stage and they argued the case extensively]

9. Heard the arguments. In fact the bone of contention between the parties is the proviso
inserted in Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976 vide SRO-
184(1)/2013 dated 8.3.2013. The newly added proviso made it mandatory that before
commencing the pupilage and filing intimation to Provincial Bar Council the applicant must
undertake and pass assessment test as mentioned in Rule 108-B(1). In this regard the applicant
may apply to the NTS or any other authority duly notified by Pakistan Bar Council to appear in
the assessment test. After passing the LL.B examination a candidate may avail three chances to
qualify the assessment test. One more proviso was added through SRO 782(1) of 2014 dated
4.9.2014 according to which an apprentice would commence his apprenticeship with an advocate
after passing LL.B final examination and assessment test of NTS and shall furnish copies of
LL.B degree or result card with a certificate of NTS to show that he has passed the LL.B final
examination and the assessment test. For the ease of reference, Rule 108-C of Pakistan Legal
Practitioners and Bar Councils Rules, 1976 s reproduced as under:-

(108-C. (1). Every apprentice (except a person mentioned in Rule 108-J infra) shall,
before being admitted as an Advocate, have to undergo a comprehensive training
regularly for a continuous period of six months as a pupil in the chamber of an advocate,
who has been entitled to practice as an Advocate for a period of not less than ten years:
[Provided that before commencing the pupilage and filing intimation to the Provincial
Bar Council concerned the applicant must undertake and pass an Assessment Test as
mentioned in Rule 108B(1). The applicant may apply to the National Testing Service
(NTS) or any other authority duly notified by the Pakistan Bar Council, to appear in the
Assessment Test after passing the LL.B. examination and will be afforded three chances
to qualify the Assessment Test.]

'Emphasis added]

Provided further that an apprentice would commence his apprenticeship with such
Advocate after having passed his LL.B final examination and Assessment Test of
National Testing Service (NTS) and shall furnish copies of his LL.B degree or result card
and the Certificate from the National Testing Service (NTS) as to his having passed the
LL.B final examination and the Assessment Test.

[Emphasis added]

(2). A pupil may take training with more than one advocate for a total period of six
months which are substantially continuous. Intimation of joining each advocate shall be
sent to the Secretary, Provincial Bar Council in accordance with this rule.

Provided that no advocate shall take more than three pupils at a time, that the advocate
taking pupils was practicing at the Bar during the whole period of pupilage and that a
written intimation of a person joining an advocate as pupil, signed by both of them, has
been sent to the Secretary of Provincial Bar Council within one month after the
commencement of pupilage. In case an advocate has more than three pupils at any
particular time, only the first three in the order in which they were taken, shall be
regarded as under training.

(3) An advocate with whom a person received training in accordance with sub-rule (1) of
Rule 108-C shall gave a certificate in Form "B" prescribed by the Provincial Bar Council
and shall specify in the certificate or as a separate annexure thereto at least ten cases in
which he had the assistance of the pupil.

(4) An advocate who gives a false certificate in this behalf shall be guilty of professional
misconduct.

(5). Every applicant applying for admission as an advocate shall have to pass a written
examination in addition to a viva-voce examination, held quarterly under the directions
and supervision of the Enrolment Committee of the Provincial Bar Council in the
following subjects:

(i). Civil Procedure Code;

(ii).Criminal Procedure Code;

 (iii). Qanun-e-Shahadat;

(iv). Constitution of the Islamic Republic of Pakistan;

(v). Legal Practitioners and Bar Councils Act, 1973 and the rules framed thereunder; and

(vi). Canons of Professional Conduct and Etiquettes.

The written examination shall be of 3 hours duration carrying 100 marks each paper with
a pass percentage of 50%.

Copies of the Constitution, Bare Acts and Rules shall be made available to the applicant
at the examination.

10. At this juncture, Rule 108-A of Pakistan Legal Practitioners and Bar Councils Rules,
1976 is also worth mentioning which postulates that any person qualified to be admitted as an
advocate under Section 26 may make application in Form "A" prescribed by Pakistan Bar
Council for admission as an advocate to the Provincial Bar Council within whose jurisdiction he
proposes to practice generally. While 108-B of the same Rules catalogued the formalities and
prerequisites of the application which includes certificate/result card issued by the National
Testing Service (NTS) or any other authority duly notified by the Pakistan Bar Council, as to
show that the applicant has passed the assessment test as laid down in clause (1) which is
reproduced as under:--

Clause (1) Rule 108-B

(1) Certificate/Result Card issued by the National Testing Service (NTS) or any other
authority duly notified by the Pakistan Bar Council as to applicant's having_passed the
Assessment Test. The National Testing Service CNTS) shall hold the Assessment Test
thrice in a year.
[Emphasis added]

11. In order to move forward it is also expedient to reproduce Section 26 of the Legal
Practitioners and Bar Councils Act, 1973 which reads as under:-

26. Persons qualified for admission as advocates.---[xxx] Subject to the provisions of this
Act and the rules made thereunder, a person shall be qualified to be admitted as an
advocate if he fulfills the following conditions, namely:

(a). he is a citizen of Pakistan or a person deriving his nationality from the State of
Jammu and Kashmir:

Provided that subject to the other provisions of this Act a national of any other country
[who has resided in Pakistan for a period of not less than one year immediately preceding
the day on which he applies for admission] may be admitted as an advocate if citizens of
Pakistan duly qualified are permitted to practice law in that other country;
 (b). he has completed the age of twenty-one years;

(c). he is a Barrister or is or was enrolled as an advocate of a High Court in any area

which before the fourteenth day of August, 1947, was comprised within India as defined
by the Government of India Act, 1935 (25 Geo. 5, c 2), or has obtained

(i). before the 7th day of February, 1966, a degree in law from any university in Pakistan,
or

(ii). before the fourteenth day of August, 1947, a degree in law from any university in any
area which was comprised before that date within India as defined by the Government of
India Act, 1935 (36 Geo 5, c 2); or

(iii).a degree in law from a university in Pakistan or abroad recognized by the Pakistan
Bar Council; and]

(d). he has undergone such course of training and passed such examination after the
training as may be prescribed by the Pakistan Bar council:
[Emphasis added]

Provided that this clause shall not apply to any class of persons who, by reason of their
legal training or experience, are declared by the Pakistan Bar Council to be exempt from
the provisions of this clause; and

(e). he has paid such enrolment fee and fulfills such other conditions as may be
prescribed by the Pakistan Bar Council.

[(2) xxxxxxxxx] (Subs. by Amendment Act XII of 2005 dated 17.9.2005)

[(3)xxxxxxxxx] (Subsection (2) omitted by Amendment Act XII of 2005 dated

17.9.2005)

12. Before dwell on and explicating the core issue or the stumbling block in the case in hand,
we would like to revisit recent past to grasp the role played by Pakistan Bar Council and their
concern and anxiety with regard to the standard of legal education and legal acumen which
always plays an important role to enhance and build up and groom a person who decided to join
profession of law as his career. Being apex and supervisory body of Provincial Bar Councils,
Pakistan Bar Council filed a Constitution Petition (PLD 2007 Supreme Court 394, Pakistan Bar
Council v. Federation of Pakistan and others) in the Supreme Court and sought directions against
the Federal Government, Higher Education Commission of Provincial Governments and the
Universities to adopt and implement the Affiliation of Law Colleges Rules framed by the
Pakistan Bar Council and further that no charter or no objection certificate be issued to any
institution, college or individual to establish law college without compliance of the said Rules.
Apex court analyzed and took the cognizance of the situation with regard to legal education in
the country and allowed the petition in the following terms:
 "21. For what has been discussed above and on account of the fair stand taken by the
respondents, we are persuaded to allow this petition and direct as under:-

(1) The Pakistan Bar Council, is the apex professional elected body of lawyers
established under the Legal Practitioner and Bar Councils Act, 1973. One of its primary
functions under this Act is to 'promote legal education and prescribed standards of such
education in consultation with the universities in Pakistan and the Provincial Bar
Councils'. (Section 13(j)). It has been empowered to make rules to carry out its functions
which include rules to provide for, "the standards of legal education to be observed by the
universities in Pakistan and the inspection of universities for that purpose".

(ii) The Affiliation of Law Colleges Rules framed by the Pakistan Bar Council and any
rule added or amended from time to time by it are essential to ensure that the law
schools/colleges impart uniform quality legal education.

(iii) The rules framed by the Pakistan Bar Council shall be read into the rules framed by
any Pakistani university and in case of conflict former rules shall have primacy.

(iv) The rules do not envisage any concept of provisional affiliation. However, if any
enactment, rules or regulation made thereunder provide for provisional affiliation, the
same shall not extend beyond the period of one year and thereafter the said college shall
stop admitting students for a law degree.

(v) With a view to improve and update the syllabus prescribed for a professional degree
in law, we are persuaded to appoint a 5 Member Committee to be headed by Justice (R)
Nasir Aslam Zahid, former Judge of the Supreme Court of Pakistan to examine the
existing courses of law prescribed by the universities for obtaining the professional
degree and to suggest suitable proposals, inter alias, in the light of the observations made
by this Court. The Committee shall submit its report within six months to the Pakistan
Law Commission for consideration...."

13. According to Britannica, Legal profession/vocation is based on expertise in the law and
in its applications. Although there are other ways of defining the profession, this simple
definition may be best, despite the fact that in some countries there are several professions and
even some occupations (e.g., police service) that require such expertise but that may not regarded
as within the legal profession. A distinct class of legal specialists other than judges first emerged
in Greco-Roman civilization, and, as with the law itself, the main contribution was from Rome in
the period from 200 BCE to 600 BCE. In the early stages of both Greece and Rome, as later
among the German tribes who overran the Roman Empire, there was a prejudice against the idea
of specialists in law being generally available for a fee. The assumption was that the citizen
knew the customary law and would apply it in transactions or in litigation personally with advice
from kinsmen. As the law became more complex, men prominent in public life usually patricians
found it necessary to acquire legal knowledge, and some acquired reputations as experts. Often
they spent periods serving as magistrates and in Rome as priests of the official religion, having
special powers in matters of family law. Among the German tribes, noble experts were allowed
to assist in litigation, not in a partisan fashion but as interpreters (Vorsprecher) for those who
wished to present a case but felt uncomfortable doing so themselves. The peculiar system of
development of early Roman law, by annual edict and by the extension of trial formulas, gave
the Roman patrician legal expert an influential position. He became the jurist-consult, the first
non-official lawyer to be regarded with social approbation, but he owed this partly to the fact that
he did not attempt to act as an advocate at trial a function left to the separate class of orators and
was prohibited from receiving fees.

(Ref: http://www.britannica.com/topic/legal-profession)

14. LL.B. stands for Bachelor of Laws (English). In Latin the abbreviation LL.B. is expanded
as Legurn Baccalaureus. Aptitude test means a test designed to determine a person's ability in a
particular skill or field of knowledge. A standardized test designed to predict an individual's
ability to learn certain skills. According to profile available at website, National Testing Service
(NTS) was established in July 2002 in response to a need for a testing service in the National
Education Policy (1998-2010) and the Information Technology (IT) Policy of Government of
Pakistan (GoP). This institution conducts tests and assessments for admissions, scholarships,
recruitment and promotion purposes which are now pre-requisite of many prime public and
private sector engineering, medical and other colleges, universities and institutions for admission
and recruitment. We are fully in agreement that this institution has not been constituted under
any statute but at the same time we are sanguine that this is only a service provider venture
which arranges facility and infrastructure to make easy and facilitate the required assessment or
aptitude test. It is totally dependent upon one's own leisure either to engage this service provider
or to arrange any such aptitude or assessment test by their own. Since in the case in hand,
Pakistan Bar Council has made arrangement of the assessment test through NTS which by all
means a contractual engagement between a service provider with the apex body of all provincial
bar councils so in our view it does not seem to be violative of any law except that it is an
agreement and arrangement which may be determined at any time by the parties in accordance
with the terms of engagement if any. To cut a long story short, let us go through "Law Graduate
Assessment Test" (LAW-GAT), developed by the service provider to cater the need of
assessment test. According to the details hosted at the web site of NTS, http:/ /www.nts.org.pk.
A law graduate desirous of seeking enrolment as an Advocate to practice law is required to pass
an Assessment Test, for being eligible to apply to a Bar Council for that purpose. The Pakistan
Bar Council (PBC) has, therefore, assigned National Testing Service (NTS) the responsibility to
conduct Law Graduate Assessment Test (LAW-GAT). Person having passed LL.B (final year)
examination from a University recognized by Pakistan Bar Council is eligible to apply for LAW-
GAT. Curriculum of NTS for law graduate assessment test (LAW- GAT) is as under:-

Sr.No. Title Percentage- 20%

1. Constitution i. World ii.
Constitution History
2. Jurisprudence i. English 20%
ii. Islamic Equity
3. Civil Law i. CPC ii. .. 20%
Contract/Limitation
4. Criminal Law i. P.P.C. 20%
 ii. Cr.P.C.
5. Law of Evidence i. 1984 10%
Order ii. Principles
6. English Legal Language 10%
Total 100%

15. Earlier also in this court, arrangement of test through NTS for the selection of Additional
District Judges was challenged but the learned division bench dismissed the petition. Judgment is
reported in 2010 PLC (C.S.) 957 (Kamran Shehzad Siddiqui and 2 others v. Administration
Committee and 2 others). This court held that "Contention of the learned counsel that NTS had
no authority to conduct test is without any basis whatsoever. The authority to conduct tests
vested in the High Court and if Administration Committee of the High Court for reasons that
NTS being a Specialized Agency would be more attuned for conducting tests for general
knowledge, verbal ability and similar other characteristics subjects came to the conclusion that
NTS be given the task of conducting first test no fault can be found with such a decision by
Administration Committee. Moreover neither it has been stated in the petition nor was it argued
during hearing that what prejudice, if any, has been caused to the petitioners by the mere fact that
first test was conducted by NTS". One more judgment of the apex court which should not escape
our attention is the case of Miss Hina Javed v. Government of N.-W.F.P. reported in 1998
SCMR 1469. In this case entry for determining the true merits of the candidates in the medical
colleges was challenged. The apex court held as under:-

"11. Firstly, the standard of education and the method of examinations throughout the
country has shown a downhill slide in recent past. The manner in which Board
examinations are conducted and marking on the papers is done has considerably eroded
the faith and confidence in the fairness of the process of these examinations. Therefore,
refusal by authorities of medical colleges to abide solely by the result of these
examinations to determine the true merit of a candidate was not totally unjustified.
Secondly, keeping in view the prevailing irregularities and unhealthy practices in the
Board examinations and to meet the challenges of growing competition for admission in
the professional colleges, the introduction of entry test for determining the true merits of
the candidates was a welcome step. We may mention here that merits of entry test for
admission to higher studies and professional colleges have since been recognized all over
the world and it is gradually finding its way in the professional colleges of our country as
well. The foremost institution in the medical field which introduced entry test to
determine the merits of candidates seeking admission to M.B.,B.S. classes was Agha
Khan Medical College. Since then many other medical colleges in private sector in the
Province of Sindh have adopted this system. The entry test system is also in vogue in the
Army Medical College, Rawalpindi. With the success of entry test system in Agha Khan
University and other Colleges many other professional colleges in the country have also
introduced entry test for determining the merits of candidates seeking admission to these
colleges. The system of entry test for admission to professional colleges has by and large
met with the approval of people and has been a success so far without arousing any
serious adverse criticism from the concerned quarters. No doubt, like all other systems
the success of entry test for admission to professional colleges also depends largely on
 the fairness and transparency of the system and the honesty and dedication of those who
are responsible for its enforcement".

16. Learned counsel for the petitioners argued that the proviso added in Rule 108-C making
the requirement of assessment test mandatory before commencing the pupilage and filing of
intimation to the Provincial Bar Council is ultra vires to Section 26 of the Legal Practitioners and
Bar Councils Act, 1973. it was further argued that Pakistan Bar Council has no right and
authority to introduce such type of amendment which is novel and unique to the provisions of
Section 26 of the aforesaid Act. It is fundamental and rudimentary for us to put side by side the
proviso added through amendment and the pith and substance of the 1973 Act. In our vision and
outlook, Section 26 of Act germane to admission as an advocate subject to fulfillment of
conditions mentioned under it and clause (d) amplifies that person applied for the license to
practice as an advocate has to undergo such course of training and pass such examination for the
training as may be prescribed by the Pakistan Bar Council. An argument was put forward that in
view the niceties and exactitudes of this clause, Pakistan Bar Council could not introduce any
provision for assessment test before commencing the pupilage and filing intimation.

17. Sooner than embarking to the sphere of exploration as to whether the impugned proviso
is intra vires or ultra vires, we have to thresh out minutiae of various Sections of Legal
Practitioners and Bar Councils Act, 1973 and the Rules framed thereunder. Under Section 13 of
the Legal Practitioners and Bar Councils Act, 1973 functions of the Pakistan Bar Council are
provided which includes to lay down standards of professional conduct and etiquette for
advocates; to promote and suggest law reform; to exercise general control and supervision over
the Provincial Bar Councils and to issue directions to them from time to time; to promote legal
education and prescribe standards of such education in consultation with the universities in
Pakistan and the Provincial Bar Councils; to recognize universities whose degree in law shall be
qualification for enrolment as an advocate; and to do all things necessary for discharging
functions. (see clauses (d), (g), (i), (j), (k) and (n) of Section 13 of Legal Practitioners and Bar
Councils Act, 1973). If we get the drift of Section 9 in juxtaposition it converses to the functions
of Provincial Bar Councils which inter alia includes to admit persons as advocates on its roll; to
hold examination for the purposes of admission; to prepare and maintain a roll of such advocates
of the province; to admit persons as advocate entitled to practice before the High Court and to
prepare and maintain roll of such advocates; but one of the functions specified in clause (i) is to
perform all other functions conferred on it by or under this Act and to comply with directions
given to it by Pakistan Bar Council from time to time. At this point of time, we would like to
revert to Section 26 which set down the qualification to become an advocate. What profusely
deciphers is that a person may be admitted as an advocate subject to the provisions of Legal
Practitioners and Bar Councils Act, 1973 and the Rules made thereunder. In exercise of powers
conferred by Section 55 of the 1973 Act, Pakistan Bar Council framed Pakistan Legal
Practitioners and Bar Councils Rules, 1976, which were notified on 22.5.1976. When we looked
into Section 55 of the 1973 Act, we find out various rule making powers which are also included
in the functions of Pakistan Bar Council under Section 13 of the Act including the rule making
power for general principle and for guidance of the Provincial Bar Councils.

18. Under the 1973 Act, it is clear that Pakistan Bar Council exercises general control and
supervision over the Provincial Bar Councils and may issue directions to them from time to time.
Simultaneously, one of the functions of the Provincial Bar Councils is to comply with the
directions given to it by Pakistan Bar Council from time to time which makes it well defined that
the Pakistan Bar Council possesses general control and supervision over the Provincial Bar
Councils and may also issue directions to them from time to time. Reference may be made to
PLD 2001 SC 84 (S.M. Gharib Nawaz Daccawala v. Sindh Bar Council and another), in which
the apex court held that Pakistan Bar Council and other Provincial Bar Councils have to work
together within the framework of provisions of the Legal Practitioners and Bar Councils Act
wherein each Bar Council has been invested with powers to deal with the affairs of the advocates
while Pakistan Bar Council being appellate and supervisory body of all the Provincial Bar
Councils stands on higher pedestal.

19. While maintaining the argument that proviso of Rule 108-C of the Pakistan Legal
Practitioners and Bar Councils Rules, 1976 is ultra vires, the learned counsel for the petitioners
referred to the following case law:-

PLD 1964 SC 451 (Province of East Pakistan and another v. Nur Ahmed and another).
Rule making authority cannot clothe itself with powers which statute itself does not give.

2001 SCMR 1806 (M/s. Mehraj Flour Mills and others v. Provincial Government and
others). Rule should always be consistent with the Act and no Rule shall militate or
render the provisions of the Act ineffective. Test of consistency is whether the provisions
of the Act and that of the Rules can stand together. Main object of the rule is to
implement the provisions of the Act and in case of conflict between the two the Rule
must give way to the provisions of the Act.

PLD 2014 SC 389 (Suo Motu Case No.11 of 2011) Rulermaking body cannot frame rules
in conflict with or in derogation of the substantive provisions of the law or statute, under
which the rules are framed. Rules cannot go beyond the scope of the Act

PLD 2011 Supreme Court 619 (Suo Motu Case No.13 of 2009). No rule can be made
which is inconsistent with the parent statute, whereas, no regulation can be framed which
is inconsistent with the parent statute or the rules made thereunder and the provisions of
these rules or regulations, as the case may be, to the extent of such inconsistency with the
parent statute or rules shall be void and inoperative.

20. The collective ratio or wisdom deducible from aforesaid dictums makes it abundantly
clear that Rule making authority cannot clothe itself with powers which statute itself does not
give. Rule should always be consistent with the Act and shall not militate or render the
provisions of the Act ineffective. The rule to the extent of inconsistency with the parent statute
shall be void and inoperative. Rule cannot go beyond the scope of the Act. There is no cavil to
the proposition of law expounded or envisioned in the above pronouncements nevertheless it is
not beyond our province to examine the impugned amendment to recapitulate whether the Rule
made is inconsistent with or in derogation of substantive provisions of the law or statute. Under
Section 26 of the Legal Practitioners and Bar Councils Act, 1973 certain qualifications are
provided for admission as an advocate but it comes in the way only after filing intimation and
undergone such course of training and pass examination after the training as may be prescribed
by the Pakistan Bar Council. In nutshell there is no separate or independent provision specified
itself under the Act that how a new entrant may file his Intimation Form and what further
formalities he has to meet with at the time of filing intimation or even what requirements he has
to fulfill and comply with after completion of his pupilage. All these peculiarities and procedures
are provided under the Rules framed by Pakistan Bar Council. We have also scanned the
specimen of Form "A" and "P" appended to Sindh Legal Practitioners and Bar Council Rules,
2002 (attached with R&P of C.P. No.D-913/2015) which elucidates that Form "P" is intimation
form and after completion of pupilage requirement of Form "A" comes to light so it is
recapitulated that applicability of Section 26 of 1973 Act emanates and crop up after completion
of pupilage and not prior thereto. The requirement of assessment test naturally ensues at very
initial stage when a person after passing LL.B. Final examination decides to join legal
profession. Under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 subject to
such qualification if any as may be prescribed by law every citizen has right to enter into any
lawful profession or occupation and to conduct any lawful trade or business but noting in this
Article prevents the regulation or any trade or profession by licensing system. To join legal
profession is no doubt a fundamental right but to become an advocate on one's own terms and
conditions is not a fundamental right but he has to follow all procedural requirements. The
expression subject to qualification if any as may be prescribed by law connotes that the State or
the competent authority in law can regulate any trade, profession or business. So this right is not
an absolute right but it is liable to certain restrictions. The word lawful means; according to law;
not contrary to law; or permitted by law: or sanctioned or recognized by law; or pertaining to or
concerned with law. According to Judicial Review of Public Actions by Justice (R) Fazal Karim,
(Page 719, Chapter-10, Vol.1) 'Profession' means a vocation or occupation, requiring special,
usually advanced, education, knowledge and skill, e.g. law or medical professions. The labour
and skill involved in a profession is predominantly mental or intellectual, rather than physical or
manual. The term originally contemplated only theology, law, and medicine, but as applications
of science and learning are extended to other departments of affairs, other vocations also receive
the name, which implies professed attainments in special knowledge as distinguished from mere
skill. Thus, one of the signification of 'profession'. Occupation means that which principally
taken up one's time, thought, and energies, especially one's regular business or employment; also,
whatever one follows as the means of making a livelihood. Particular business, profession, trade,
or calling which engages individual's time and efforts, employment in which one regularly
engages or vocation of his life.

21. The Provincial Bar Councils under the Act are responsible to adhere to the directions
given by the Pakistan Bar Council from time to time which is apex body having supervisory
control and also issue guidance from time to time. They have created a concept of assessment
test under the Rules framed in the year 1976 under the Act, 1973. We do not feel either it is
derogatory or inconsistent with the Act, 1973 nor violates or militates the fundamental right of
any person. The assessment test is not a new phenomenon but it is quite common in most of the
educational institutions imparting education including medical, engineering and other
professions. A person who wants to join legal profession with seriousness, allegiance and
devotion he should not have afraid of assessment test. Mere passing LL.B examination does not
necessarily mean that a person should join legal profession. It is relatively communal that many
Government servants and other employees of different organizations/private sector who may not
opt to join legal profession but in order to enhance their academic qualifications and to earn
better prospective or venue of promotion or progression also take admission in LL.B. It is high
time for Pakistan Bar Council and Provincial Bar Councils to formulate and compose all best
possible efforts to maintain the high standards and benchmarks of this noble profession and it is
their onerous duty to apply assessment test as precondition of "Intimation Form" to sift and
screen right and deserving persons so that they may maintain the decorum and high standard of
legal profession as true successors of their exalted vocation for which assessment test is an
excellent device and yardstick.

22. The important distinction between primary and subordinate legislation is that primary
legislation is law directly made by the Legislature; subordinate legislation, on the other hand, is
law made by a subordinate authority acting under delegated legislative power. In the words of
the Constitution, Article 260, which, among others, defines the terms 'Federal Law' and
'Provincial Law', primary legislation is the law made by, that is, made directly by the Parliament
or as the case may be, by the Provincial Assembly and subordinate legislation is the law made
under the (delegated) authority of the Parliament, or as the case may be, of the Provincial
Assembly. The crucial part of the definitions is that which provides a source based test: law
made "under the authority of the Parliament, or as the case may be, of the Provincial Assembly."
Subordinate legislation must, in order to be law, and in order to be valid, depend on an Act. In
the poetical words of Cecil Carr, delegated legislation "is directly related to Acts of Parliament,
related as child to parent...."

C.Carr, Delegated Legislation: Three Lectures (1921) p.2. [Ref: Judicial Review of
Public Actions by Justice (R) Fazal Karim, Chapter.3, page 1281, Vo.2.]

"Power to make rules, regulations etc. is a delegated legislative power. Subordinate

legislation, if validly made, is as much law as a statute; it binds the public, it binds the
government and it binds the courts. Thus, in US v. Nixon, the US Supreme Court said:
"So long as this regulation is extant, it has the force of law..... So long as this regulation
remains in force, the executive branch is bound by it....." As was said in Works v. DPP.
"There is, of course, no doubt that when a statute enables an authority to make
regulations, a regulation which is validly made under the Act, i.e. which is intra vires of
the regulations-making authority, should be regarded as though it was itself an
enactment." From the proposition that subordinate legislation is law, flows corollary that
it can create rights, obligations, duties and liabilities".

[Ref: Judicial Review of Public Actions by Justice (R) Fazal Karim, Chapter.3, page
1281, Vo.2.]

23. The whole theory of ultra vires is that the act in question, be it a legislative act or an
administrative act, is beyond the legal power of the person or authority doing it. In each case,
there is law higher in authority, and the test to determine the vires is whether the subordinate law
conflicts with the higher law. If it does, then it must be treated as of no validity. We have no
hesitation to hold that the impugned proviso added in the Rules is not in derogation of the
substantive provisions of 1973 Act nor it is repugnant nor it militates or renders the provisions of
the Act ineffective rather the provisions of the Act and that of the Rules both can stand together
and there is no such conflict in which circumstances the Rule must give way to the provisions of
the Act. The introduction of assessment test for new entrants also does not violate or contravene
any fundamental right of any person nor it is discriminatory to any individual quite the reverse, it
is applicable across the board with broad spectrum. It is not the case here that on introducing this
assessment test, the Bar Councils have restricted or curtailed the seats or openings but any person
who will meet threshold of 50% marks will be allowed to submit intimation form and to qualify
this test, at least three attempts are available. The curriculum of assessment test shows that it is
virtuously confined and restricted to the subjects of law and we do not envision and visualize that
a contender who appeared in various subjects of law and passed his LL.B final examination
cannot sit and solve assessment paper. At this juncture, we would like to reproduce paragraph 9
of the Counter Affidavit filed by Sindh Bar Council as under:

"9. It is also relevant to note that after the said amendment was passed, vide letter dated
29.7.2013, the respondent No.3 directed the respondent No.2 that from 30.9.2013
onwards, it should no longer entertain intimation forms from law graduates who had not
passed the NTS examination. Copies of the impugned notification dated 7.3.2013, the
PBC letter dated 29.7.2013 and the NTS brochure are annexed herewith as Annexures
"C" to "E" respectively. It may be pointed out that in the period starting from 1.10.2012
to 30.9.2013, a total of 1926 intimation forms were received by the respondent No.2.
Thereafter, once the NTS regime was enforced, only 282 intimation forms were received
in the period starting from 1-10-2013 to 30-9-2014. This clearly shows the dramatic
improvement in the enrolment standards of advocates. In the three NTS examination that
have been held so far since 30.9.2013, a total of 361 law graduates have successfully
passed the same. [Emphasis added] It is further requested that the respondent No.4 may
be directed to file the syllabus of the examinations being held as well as copies of the
three examination papers thus far held and the pass rate in each examination so that this
hon'ble court may be in a better position to gauge the utility and benefit of the NTS
examination. It may also he pointed out that after the passing of the interim order passed
by this court on 16.3.2015 the answering respondent has entertained 1780 intimation
forms and the Executive Committee of the answering respondent has recommended, vide
its meeting dated 14.5.2015 that in the light of the orders by this court the enrolment of
each persons may be proceeded with whether or not they have passed the NTS
examination as if the impugned notification of 7.3.2013 had never been issued".

24. The learned counsel for Sindh Bar Council as his fallback argument referred to Doctrine
of severability which permits the court to sever the unconstitutional portion of a partially
unconstitutional statute in order to preserve the operation of any uncontested or valid remainder
he made reliance on the following dictums:

2009 SCMR 846 (Qaiser Javed Malik v. Pervaiz Hameed and 2 others). The Courts
should adopt an interpretation, which may give meanings to each word of an enactment
taking into consideration the spirit of such legislation. An interpretation, whereby any
portion of an enactment is rendered ineffective is not to be adopted when clear meanings
can be given to various provisions of an enactment in a harmonious manner.
2005 MLD 1724 (Khursheed Ahmed Junejo and others v. Government of Sindh and
others). Provisions of a statute were to be interpreted in a harmonious manner so that
effect may be given to each one without treating either of them to be redundant.

2014 CLC 335 (M.Q.M. and others v. Province of Sindh and others). Doctrine of
severability permitted a court to sever the unconstitutional portion of a partially
unconstitutional statute in order to preserve the operation of any uncontested or valid
remainder, but if the valid portion was so closely mixed up with the invalid portion that it
could not be separated without leaving an incomplete or more or less mixed remainder,
the court would declare the entire act void.

AIR 1957 SC 628. (R.M.D. Chamarbaugwalla and another v. Union of India and
another). Doctrine of severability. When a statute is in part void, it will be enforced as
regards the rest, if that is severable from what is invalid. Certain rules of construction laid
down by the American Courts, where the question of severability has been the subject of
consideration in numerous authorities. They may be summarized as follows:-

1. In determining whether the valid parts of a statute are separable from the invalid parts
thereof, it is the intention of the legislature that is the determining factor. The test to be
applied is whether the legislature would have enacted the valid part if it had known that
the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156;
Sutherland on Statutory Construction, Vol. 2, pp. 176-177.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be
separated from one another, then the invalidity of a portion must result in the invalidity of
the Act in its entirety. On the other hand, if they are so distinct and separate that after
striking out what is invalid, what remains is in itself a complete code independent of the
rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide
Cooley's Constitutional Limitations, Vol. 1 at pp. 360-361; Crawford on Statutory
Construction, pp. 217-218.

3. Even when the provisions which are valid are distinct and separate from those which
are invalid, if they all form part of a single scheme which is intended to be operative as a
whole, then also the invalidity of a part will result in the failure of the whole. Vide
Crawford on Statutory Construction, pp. 218-219.

4. Likewise, when the valid and invalid parts of a statute are independent and do not form
part of a scheme but what is left after omitting the invalid portion is so thin and truncated
as to be in substance different from what it was when it emerged out of the legislature,
then also it will be rejected in its entirety.

5. The separability of the valid and invalid provisions of a statute does not depend on
whether the law is enacted in the same section or different sections; (Vide Cooley's
Constitutional Limitations, Vol. 1, pp. 361-362); it is not the form, but the substance of
the matter that is material, and that has to be ascertained on an examination of the Act as
a whole and of the setting of the relevant provisions therein.
 6. If after the invalid portion is expunged from the statute what remains cannot be
enforced without making alterations and modifications therein, then the whole of it must
be struck down as void, as otherwise it will amount to judicial legislation. Vide
Sutherland on Statutory Construction, Vol. 2, p. 194.

7. In determining the legislative intent on the question of separability, it will be legitimate

to take into account the history of the legislation, its object, the title and the preamble to
it. Vide. Sutherland on Statutory Construction, Vol. 2, pp. 177-178.

25. According to Bennion's annotation, "The main reason why the legislature delegates is that
it cannot itself go into sufficient detail. The answer is two-tier legislation. The top tier is the
enabling Act, sometimes known as a skeleton Act or what Sachs J called a streamlined Act. The
second tier is laid down in delegated legislation, which can easily be adjusted in the light of
experience of its working. The true extent of the power governs the legal meaning of the
delegated legislation. The delegate is not intended to travel wider than the object of the
legislature. The delegate's function is to serve and promote that object, while at all times
remaining true to it. That is the rule of primary intention". Bennion on Statutory Interpretation,
Fifth Edition. (Comment on Code S 59. Page 263). Justice G P Singh, in his book "Principles of
Statutory Interpretation" 12th Edition 2010, (Page 1051) annotated that "Rules made under the
statute are treated for the purpose of construction as if they were in the enabling Act and are to
be of the same effect as if contained in Act. Interpretative notes appended to the Rules by the
Rule making authority are part of the Rules and hence statutory. It is a recognized canon of
construction that an expression used in a rule, bye-law or form made in exercise of a power
conferred by a statute must unless there is anything repugnant in the subject or context have the
same meaning as is assigned to it under statute. But the rules are to be consistent with the
provisions of the Act, and if a rule goes beyond what the Act contemplates, the rule must yield to
the Act".

26. In the judgment authored by one of us (Muhammad Ali Mazhar-J) 2014 CLC 335
(M.Q.M. and others v. Province of Sindh and others), it was held that Doctrine of severability
permits court to sever the unconstitutional portion of a partially unconstitutional statute in order
to preserve the operation of any uncontested or valid remainder, but if the valid portion was so
closely mixed up with the invalid portion that it could not be separated without leaving an
incomplete or more or less mixed remainder, the court would declare the entire act void. No such
situation arises in this case to declare the proviso void. The Rules framed under the delegated
legislation easily be adjusted in the light of experience of its working which has been done by the
Pakistan Bar Council which is in fact a Rule making Authority and most of the incidences are
not mentioned in the Act of 1973 including the procedure even filing of intimation but all such
details are mentioned in the Rules. The learned counsel for Sindh Bar Council argued that
assessment test may be taken after completion of pupilage. We have already examined that under
Rule 108-C, at the time of applying admission as an advocate (which means after completion of
pupilage) the applicant has to pass a written examination in addition to a viva-voce examination
under the directions and supervision of the Enrolment Committee of the Provincial Bar Council
in the subjects i.e. Civil Procedure Code, Criminal Procedure Code, Qanun-e-Shahadat,
Constitution of the Islamic Republic of Pakistan, Legal Practitioners and Bar Councils Act, 1973
and the rules framed thereunder, Canons of Professional Conduct and Etiquettes. It is further
provided in the same Rule that copies of the Constitution, Bare Acts and Rules shall be made
available to the applicant at the examination.

27. It is not a workable and feasible idea that after completion of pupilage of six months,
applicant should face three exams simultaneously, one assessment test through NTS, second
exam with books and third viva voce. It is not the case that the provisions of Section 26 of the
Act 1973 and proviso added in the 1976 Rules are so inextricably mixed up that they cannot be
separated from one another so that the invalidity of a portion must result in the invalidity of the
Act in its entirety. On the other hand, both are so distinct and separate. It is not the form, but the
substance of the matter that is material, and that has to be ascertained on an examination of the
Act as a whole and of the setting of the relevant provisions therein. Since we have already held
that proviso added in the Rules is not violative of the 1973 Act or anybody's fundamental rights
therefore Doctrine of severability does not apply here for us to preserve the operation of any
uncontested or valid remainder and declare the proviso in derogation of the substantive
provisions of 1973 Act. So far as Clause (1) added in Rule 108-B is concerned, it merely
expresses a formality to attach Certificate/Result Card issued by the National Testing Service
(NTS) or any other authority duly notified by the Pakistan Bar Council, as to applicant's having
passed the Assessment test, therefore, it has no adverse repercussions or ramifications. As and
when application will be moved by a person under Section 26 of the Act of 1973 read with the
formalities required to be fulfilled under Rules 108-B and 108-C for his enrollment and
admission as an advocate, the candidate may simply attach his certificate/result card issued by
NTS at the time of assessment test conducted as prerequisite of intimation form.

28. As a result of above discussion, the petitions are dismissed with pending applications.
However, a Resolution/ Decision of Executive Committee is attached to the counter affidavit
filed by SBC as Annexure F, which shows that pursuant to the interim orders passed on
16.3.2015 in C.P.No.D-913/2015, the Executive Committee of SBC decided in their meeting
held on 14.5.2015 that "all the pending intimations in which the National Testing Service (NTS)
has been cleared by various applicants and others who have not appeared in the NTS due to
amendment made by Pakistan Bar Council in Rule 108 be also allowed to appear in written
test/viva voce examination if their intimation period have been completed subject to fulfillment
of necessary formalities and/or if any case pending for Enrollment due to short documents or
otherwise they may also be allowed subject to furnishing of documents" therefore it is clarified
that the intimation forms already accepted by the Sindh Bar Council in view of the above
decision shall not subject to assessment test at this stage, nevertheless, in future all Intimation
Forms shall be accepted after fulfilling the requirement of Assessment Test as envisaged under
Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976.

SL/K-12/Sindh Petitions dismissed.

2019 S C M R 389
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ
CONSTITUTION PETITION NO.134 OF 2012
AND
CIVIL MISC. APPLICATION NO.1864 OF 2010 IN CONSTITUTION PETITION
NO.9 OF 2005
AND
CIVIL MISC. APPLICATIONS NOS.1939 OF 2014, 5959 OF 2016, 4095, 1793, 2876,
2996, 3014 AND 6672 OF 2018 IN CONSTITUTION PETITION NO.134 OF 2012
AND
CIVIL MISC. APPLICATIONS NO.3034, 3048, 3051 AND 6247 OF 2018 IN CIVIL
MISC. APPLICATION NO.1864 OF 2010
PAKISTAN BAR COUNCIL through Chairman and others---Petitioners
Versus
FEDERAL GOVERNMENT through Establishment Division and others---Respondents
Constitutional Petition No. 134 of 2012, Civil Miscellaneous Application No. 1864 of 2010
in Constitutional Petition No. 9 of 2005, Civil Miscellaneous Applications Nos. 1939 of
2014, 5959 of 2016, 4095, 1793, 2876, 2996, 3014 and 6672 of 2018 in Constitutional
Petition No.134 of 2012 and Civil Miscellaneous Applications Nos. 3034, 3048, 3051 and
6247 of 2018 in Civil Miscellaneous Application No. 1864 of 2010, decided on 31st August,
2018.
(a) Bar and bench---
----Legal system on the whole flourished by positive and productive cooperation between the
Bar and the Bench for ascertainment of the truth and decision of controversies according to
the relevant and applicable law---Independent, competent, honest and industrious judicature
required an equally independent, dynamic, honest and dedicated Bar in order to effectively
provide justice in accordance with law to all members of the society.
(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)---
----S. 13(1)(j)---Pakistan Bar Council Legal Education Rules, 2015, Rr.9, 13, 17, 25, 28 &
34---Professional standards of legal education---Criteria for recognition of degree awarding
institutions and for affiliation of law colleges---Eligibility for admission to LL.B
programme---Recommendations and directions given by the Supreme Court for improving
standards of legal education in Pakistan---Legal education played a crucial role in
strengthening the rule of law, social stability, governance and economic development---In
Pakistan there had been a major decline in the standard of legal education owing to various
reasons, most important of which was the proliferation of substandard law degree awarding
institutions that were motivated solely by commercial considerations rather than academic
excellence---Such shift in priorities had inevitably compromised the quality of education and
hampered the intellectual development of law students---Provision of good quality legal
education was inextricably linked with dispensation of justice that the Bar was responsible
for ensuring---In its capacity, the Bar must make a conscientious effort to standardise law
degree awarding institutions---Standards of proficiency for entry to the Bar was regulated by
Legal Practitioners and Bar Councils Act, 1973 ("Act")---Pakistan Bar Council established
under the Act and the Higher Education Commission of Pakistan ("HECP") were the key
regulators to supervise and enforce professional standards in legal education---Cooperation
between the Bar Councils, HECP and law colleges had far reaching effects in terms of
development in the law, therefore law degree awarding institutions must comply with the
guidelines and rules framed by the Bar Councils from time to time---Well-structured
curriculum also fostered quality education with enduring results---Law degree curriculum
should effectively impart academic knowledge and hone skills of argument, legal analysis
and linguistic communication---Incorporating legal ethics in law curricula was vital for
making students aware of the ethics, professional responsibilities, fiduciary obligations and
discipline expected of them as future legal practitioners---Another important skill for the
practice of law was proficiency in the English language---Law colleges must strive that
English as a medium of instruction of legal subjects was adopted so that students were
adequately proficient before they graduated---Apart from substantive and procedural law,
law colleges must include social sciences such as sociology, economics and political science
in their curricula to inform students about growing number of specialised fields in the legal
profession---Five year LL.B. programme should be introduced in law colleges that were not
already offering it, as this would provide the time and exposure to ensure a complete and
comprehensive legal education where students could adequately learn and acquire the
knowledge, skills, values and practical judgment required for the legal profession---For
faithfully discharging their duty, the law degree awarding institutions also had a crucial
responsibility of ensuring availability of adequate resources, infrastructure and a faculty that
was well equipped to provide quality education---Law degree awarding institutions must
therefore devote adequate resources to a law library, co-curricular activities such as mooting
and student support services academic and career advice---Faculty members should also
assist in administrating the admission procedure and policies, curriculum, methods of
teaching and examination to maintain high academic standards as well as closely supervise
each student's academic performance to ensure the best possible results---Due consideration
must also be given by Provincial and Federal governments to allocate sufficient resources for
the improvement of legal education---Once young professionals were admitted to the Bar, it
was necessary that they continued to evolve, learn and improve their skills and knowledge to
maintain consistency with a progressing legal environment---For such purposes it was
imperative that a system of mandatory/minimum continuing legal education (CLE) or
continuing professional development (CPD) was devised whereby practicing lawyers were
continuously tested to ensure that they had the requisite knowledge of the law and
amendments or developments thereof---In such regard, senior members of the Bar had a duty
to contribute to the learning and grooming of entrants during the mandatory apprenticeship
period by imparting their knowledge and expertise of different areas of practice---Supreme
Court issued certain directions regarding entrance exams for the Bar and law colleges; ban
against conducting law classes by certain institutions; ban on mushroom admissions to post-
graduate law programmes; ban on admission to 3 year LL.B programme and holding of
evening classes; designation of curriculum for the LL.B programme; qualification of faculty
members at law colleges; constitution of Affiliating Committees for law colleges;
introduction of Special Equivalence Examination for law graduates of foreign universities;
introduction of a two weeks training Bar Vocational Course; allocation of funds in Federal
and Provincial budgets for promotion of legal education; salary package and payment of non-
practicing allowance for permanent law faculty members; assessment/evaluation of LL.B
examination; establishment of autonomous Secretariat/Directorate of Legal Education in the
Pakistan Bar Council; immediate closing down of unauthorised law colleges; disaffiliation of
sub-standard law colleges; accommodation of law students in eventuality of disaffiliation of
law colleges; law departments of Universities and law colleges which needed to show
improvements within six months---Supreme Court further directed that any university or
affiliated college that was aggrieved by a final order/ action taken in pursuance of said
directions after exhausting any remedy under the University Rules shall avail as the first
judicial remedy, appropriate relief from the Supreme Court, and that recourse to any other
judicial forum without permission of the Supreme Court was barred---Constitutional petition
along with applications was disposed of accordingly.
Pakistan Bar Council v. The Federal Government and others PLD 2007 SC 394 ref.
Hamid Khan, Senior Advocate Supreme Court, M. Anwar Kamal, Senior Advocate
Supreme Court, Zafar Iqbal Kalanori, Advocate Supreme Court, Muhammad Arshad, Secy.
PBC, Muhammad Ahsan Bhoon, Advocate Supreme Court, M. Shoaib Shaheen, Advocate
Supreme Court, Ch. Zulfiqar Ahmed Khan, Advocate Supreme Court, Ms. Bushra Qamar,
Advocate Supreme Court and Chairperson Executive Committee, Punjab Bar Council.
Bilal Ahmed Qazi, Advocate Supreme Court (for Islamia University BWP).
Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and M. Akhtar Ali,
Advocate Supreme Court (for K.P. Private Law Colleges).
Zafar Iqbal, Ch. Advocate Supreme Court (Topper Law College).
Rai Bashir Ahmed, Advocate Supreme Court (in C.M.As. 1844 and 6247/2018).
Rai M. Nawaz Kharral, Advocate Supreme Court (in C.M.A. No. 6722/18).
Zafarullah Khan Khakwani, Advocate Supreme Court, Dr. Amanullah, Chairman,
Affiliation Committee, BZU and Ch. Muhammad Umar, Registrar BZU (for BZU).
Munir Ahmed Khan Kakar, Advocate Supreme Court and Raja Abdul Rehman,
Advocate Supreme Court (for Zargoon Law College).
Riasat Ali Azad, Advocate Supreme Court (Alfalah Law College/Kashmor Law
College).
M. Ikram Chaudhry, Senior Advocate Supreme Court (in C.M.As.4012 and
4013/2018).
M. Qasim Mirjat, Advocate-on-Record (in C.M.A.4094/2018).
Junaid Akhtar, Advocate Supreme Court (in C.M.A.2996/2018).
Waseem-ud-Din Khattak, Advocate Supreme Court (for University of Peshawar).
Zulfiqar Ahmed Bhutta, Advocate Supreme Court (for Pakistan College of Law).
M. Amin Sandhela, in person (in C.M.A. 1793/2018).
 Fawad Saleh, Advocate Supreme Court (for Coles Law College).
Shaukat Ali, Principal, (Shaheed Benazir Bhutto Law College, Nausheroferoz).
Abdul Ali, Owner of Ali Law College Sanghar, Sindh (in C.M.A. 6898/18).
M. Faseeh ud Din Wardag, Advocate Supreme Court (for Jalawan Law College,
Khuzdar).
Amanullah Qazi, Director, Intelligence Law College, Moro, Sindh.
Faisal Javed, VC School of Law, Lahore.
Hassan Fareed, Legal Advisor, University of Management and Technology, Lahore.
Saleem Akhtar Warraich, Advocate Supreme Court.
Aftab Sohail, College of Law, Gujranwala.
M. Afzal Khan, Advocate Supreme Court (for Pakistan Law College, Lahore).
Nafeer A. Malik, Advocate Supreme Court (Principal Quaid-e-Azam Law College,
Lahore.)
Rana Ali Akbar, Advocate (for Topper Law College).
Mushtaq Ahmed Mohal, Advocate Supreme Court.
Sh. Irfan Akram, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-
Record (for Institute of Law).
Ahmed Qayyum, Advocate Supreme Court (for Lahore Law College).
Abbas Mirza, Advocate Supreme Court (for Farabee Law College).
Dr. Khalid Ranjha, Senior Advocate Supreme Court (for Punjab University).
Anwar ul Haq Pannu, Advocate Supreme Court.
Qaiser Amin Rana, Advocate Supreme Court.
Mian Tariq Manzoor, Advocate Supreme Court.
Sardar Muhammad Aslam, Advocate Supreme Court, Faiz Ahmed Jandran, Advocate
Supreme Court and Kifayat Ali Jaskani, Principal Shan-e-Ali Law College, Tando Adam.
Barrister Adnan Sheikh, Advocate Supreme Court (for Topper Law College, Lahore).
Mushtaq Ahmed Mohal, Advocate Supreme Court (for PSC).
Malik Matiullah, Advocate Supreme Court (for Asian Law College).
Malik Aneeq Ali Khattana, Advocate (in-person) (in C.M.A.3046/18).
Rana M. Arif, Advocate Supreme Court (in C.M.A. 2475-L of 2018).
Ashfaq Bhullar, Advocate Supreme Court and Rai M. Nawaz Khan Kharral, Advocate
Supreme Court (for Qarakuram Law College/C.M.A. 6722/18).
 Usama Shafique, Assistant Registrar, University of South Asia.
Sajid Ilyas Bhatti, Additional Attorney General for Pakistan assisted by Barrister
Menal Tariq, Qasim Ali Chohan, Addl. A.G. Pb., Shehryar Qazi, Addl. A.G. Sindh, Malik
Akhtar Hussain Awan, Additional A.G. KP, Ayaz Swati, Addl. A.G. Balochistan, Syed
Naveed Abbas, Advocate Supreme Court and Aftab Mustafa, Advocate Supreme Court (for
respondent No.7) on Courts Notice.
Waseem Hashmi, Advisor, HECP, Asif Munir, Director, HECP and Raja Abdul
Ghafoor, Advocate-on-Record (for HECP).
Dates of hearing: 20th, 24th August, 2018 at Lahore and 28th August, 2018 at
Islamabad.
JUDGMENT
UMAR ATA BANDIAL, J.---This petition is filed by the Pakistan Bar Council
("PBC") under Article 184(3) of the Constitution of Islamic Republic of Pakistan
("Constitution"). It seeks to enforce the judgment of this Court rendered in Pakistan Bar
Council v. The Federal Government and others (PLD 2007 SC 394) ("PBC judgment")
wherein the Court considered the matter of declining standards of legal education and the
mushroom growth of substandard law colleges in the country. In the PBC judgment, the
Court directed all law schools and colleges to comply with the "Affiliation of Law Colleges
Rules" ("Affiliation Rules") framed by the PBC in order to ensure uniform quality of legal
education. The Court further directed that any rules framed by the PBC shall be read into the
rules framed by any university and in case of conflict, the former shall prevail. A five-
member commission was formed in order to examine existing courses of law prescribed by
universities for obtaining the LL.B. degree and to propose other suitable steps in the light of
the observations made by the Court. Through the present petition the PBC has claimed that
none of the Respondent law colleges and universities have complied with the directions
given in the PBC judgment and have instead granted affiliation certificates to private law
colleges in violation of the Affiliation Rules that lay down, inter alia, the standards of legal
education, criteria for disaffiliation, necessary infrastructural resource facilities, maintenance
and attendance record and minimum number of lectures required of law colleges.
2. It is to be noted that the PBC judgment was not being implemented. This came to the
notice of the Court via an article published in Dawn on 27.06.2010 pursuant to which
implementation proceedings were initiated in the same year. These proceedings continued
sluggishly but came to be actively pursued in 2017 whereby, in the light of the submissions
made by the learned counsel for the petitioners, this Court vide order dated 21.01.2018
constituted a Special Committee for Structural Reforms in Legal Education. This Special
Committee consisted of Mr. Hamid Khan, Sr. ASC, Dr. A. Khalid Ranjha, Member, PBC,
Mr. Azam Nazeer Tarar, Chairman, Legal Education Committee, PBC, Mr. Justice (R) Khilji
Arif Hussain, Mr. Anwar Kamal, Prof. Ahmed Ali, Mr. Justice (R) Amanullah Yasinzai, Mr.
Mian Zafar Iqbal Kalanauri, Former Member, Punjab Bar Council, Dr. Ali Qizalbash,
Advocate, Mr. Qazi Khalid Ali, Vice-Chancellor, Shaheed Zulfiqar Ali Bhutto University of
Law, Karachi, Dr. Sohail Shahzad, Principal, Law College, University of Peshawar, Mr. Gul
Muhammad Kakar, Principal, Law College, University of Balochistan, Mr. Amjad Hussain,
Chairman, Law Department, Islamia University Bahawalpur, Mr. Muhammad Arshed,
Secretary PBC, Mr. Wasim S. Hashmi Syed, Advisor, Human Resource Development
Division and Mr. Muhammad Raza Chohan, Director General, Academics Division, Higher
Education Commission. In addition to the Special Committee, four Provincial Commissions
and one for Islamabad Capital Territory ("ICT") were also formed by this Court. These were
headed by Mr. Justice (R) Khilji Arif Hussain (Sindh), Mr. Anwar Kamal (Punjab), Prof.
Ahmed Ali (Khyber Pakhtunkhwa) Mr. Justice (R) Amanullah Yasinzai (Baluchistan) and
Mr. Justice (R) Sardar Muhammad Aslam (ICT) respectively. The Provincial Commissions
also consisted of nominees of the PBC, concerned Provincial Bar Councils, Higher Education
Commission of Pakistan, Higher Education Departments of concerned Provinces and the
Advocate Generals of concerned Provinces. For the ICT Commission, Mr. Muhammad
Shoaib Shaheen, Member, Pakistan Bar Council, Mr. Fiaz Ahmed Anjum Jandran, Vice-
Chairman, Islamabad Bar Council and Dr. Muhammad Idrees, Director Academic, Higher
Education Commission were appointed as members.
3. The work of the Special Committee involved deliberations on the matter in issue from
the following perspectives: (i) Eligibility for entry into law colleges (ii) Preparation of
uniform Syllabi of LL.B. courses and their duration (iii) Permanent and visiting faculties at
Law Colleges (iv) Assessment/ evaluation of examination and (v) Eligibility of entry to the
Bar. The Special Committee and all five Commissions thereafter inspected affiliated law
colleges that had mushroomed in the market and to report on the standard of legal education,
training and services imparted by them. Based on the findings of these inspections, the
Special Committee of the PBC submitted its report to the Court containing recommendations
for advancing the object of uplifting the standard of legal education in the country. These
recommendations variously impacted several law colleges that failed to comply with the
minimum standards and criteria prescribed by the Affiliation Rules or specified by the
regulations of the chartered universities. Accordingly, with the assistance of learned counsel
representing the PBC, Provincial Bar Councils, concerned universities and law colleges, the
Court during its proceedings held at the Branch Registry at Lahore on 20.08.2018 and
24.08.2018 and at the Principal Seat on 28.08.2018 examined, deliberated and considered the
recommendations given by the Special Committee. The Court by a short order dated
31.08.2018 disposed of Constitution Petition No. 134 of 2012 and Civil Misc. Application
No.1864 of 2010 in Constitution Petition No.9 of 2005 and issued directions reproduced at
the end of this judgment.
Analysis:
4. The Rule of Law is a fundamental principle of any democratic society and in our legal
system, it is the bedrock of the Constitution. The Judicature is entrusted with the
constitutional duty to enforce the Rule of Law and to safeguard the Constitution. The Courts
in our country resolve disputes in accordance with the Constitution and the substantive and
procedural laws framed thereunder. The system on the whole flourishes by positive and
productive cooperation between the Bar and the Bench for ascertainment of the truth and
decision of controversies according to the relevant and applicable law. An independent,
competent, honest and industrious Judicature requires an equally independent, dynamic,
honest and dedicated Bar in order to effectively provide justice in accordance with law to all
members of the society.
 5. The legal profession across the world is actively evolving. There is an ever-increasing
demand for diverse legal services ranging from consultative work to dispute resolution by
contractual or regulatory fora to litigation in Courts. Consequently there is a growing need
for law degree awarding institutions offering education that possess corresponding breadth
and quality. The phenomenon of globalisation has further contributed to this demand, thereby
leading to a greater involvement of law in both the national and international spheres. Legal
education in this respect plays a crucial role in strengthening the Rule of Law, social
stability, governance and economic development. Law schools across the world are striving
to attain higher standards of legal education for meeting the complexity of legal relations and
problems that arise in the increasingly integrated global society and market. However, the
case in Pakistan is different. There has been a major decline in the standard of legal
education owing to various reasons, explained cogently in the PBC judgment (at pp.399-
400):
13. "…Every year thousands of law graduates are getting added to the Bar. Some are
products of colleges, having a certain credibility of imparting quality education
whereas many come from colleges where the standard is below average. The products
of the latter kind neither have the requisite knowledge of law nor any commitment to
professional ethics. The apprenticeship training, prescribed under the Bar Council
Rules is taken as a formality. The good old tradition of a senior training the junior in
court room skills and ethics has given way to a new culture, where a young entrant is
on his own sooner than is appropriate i.e. before he has legal skills or is fully
equipped to properly advice the client and assist the Court…"
6. One of the principal causes of decline in the standard of legal education is due to
proliferation of substandard law degree awarding institutions that are motivated solely by
commercial considerations rather than academic excellence. This shift in priorities has
inevitably compromised the quality of education and hampered the intellectual development
of law students. Insofar as the stage of apprenticeship in the legal profession is concerned,
that also requires reform. New entrants into the profession require guidance from the
expertise, skill and experience of senior members of the Bar to imbibe legal skills and
professional ethics. However more often than not, entrants are left to their own devices due
to a dearth of advocates who are available to train juniors or simply for their lack of time and
interest to act as seniors. The omission of this crucial training period therefore, adversely
affects the professional development of qualified new entrants.
7. Apart from law degree awarding institutions, the Bar as an institution also plays an
important role in improving the quality of legal education. Provision of good quality legal
education is inextricably linked with dispensation of justice that the Bar is responsible for
ensuring. Some of its primary responsibilities include: regulating the legal profession,
shaping legal reform, ensuring fair access to justice, protecting the Rule of Law and
upholding the independence and the ethical standards of the legal profession and nurturing
legal education by mentoring. Therefore in this stimulative capacity, the Bar must make a
conscientious effort to standardise law degree awarding institutions. In this regard the PBC
judgment observes that:
11. "…The quality of the Bar and assistance it renders to the Courts to a great extent
depends on legal education. The Bar in general and the Pakistan Bar Council in
 particular therefore have awesome responsibility to improve the quality of legal
education because it is the possession of a degree of law which is a sufficient
academic qualification for entering the Bar." (at p.398)
8. For the past 45 years, the Legal Practitioners and Bar Councils Act, 1973 ("Act") has
regulated the standards of proficiency for entry to the Bar in Pakistan. The PBC established
under the Act and the Higher Education Commission of Pakistan ("HECP") established under
the Higher Education Commission Ordinance, 2002 are the key regulators to supervise and
enforce professional standards in legal education. In pursuance to the views expressed in the
PBC judgment and based upon its own deliberations, the PBC reviewed the Pakistan Bar
Council Legal Education Rules of 1978 and re-enacted these as the Legal Education Rules of
2015 ("Rules"). These Rules lay down detailed provisions on several matters concerning
legal education, in particular, criteria for recognition of degree awarding institutions and for
affiliation of law colleges thereto. The Rules were proposed, finalised and notified during the
proceedings for the implementation of the PBC judgment.
9. The Rules have an overriding effect (reference is made to Rule 2) and lay down, inter
alia, the eligibility criteria for admission to the LL.B. programme, duration of the
programme, inspection of law faculties and departments of law colleges for establishing or
renewing their qualifying status as affiliates of recognized degree awarding university. Rule
17 stipulates that "no University/Degree Awarding Institution shall commence a law
programme and admit students unless it is recognized by the Pakistan Bar Council…" and
Rule 34 requires "the College shall ensure quality legal education according to the standard
laid down by the Pakistan Bar Council as per its Rules. The directions issued by the Pakistan
Bar Council, the Higher Education Commission and/or the University/Institution from time
to time in this behalf, shall be complied with and followed by the law college." Equally, the
failure to comply with the Rules entails disaffiliation of the law colleges that are found
lacking. Therefore, the PBC is obliged to collaborate with the HECP to monitor and ensure
that law colleges adopt a stringent admission criterion for the LL.B. programme and an even
more rigorous standard for entrance into the LL.M. and Ph.D. programmes in pursuance to
Rule 13 which lays down the requirement of prior approval from the PBC and HECP for its
postgraduate programmes. For the LL.M. programme, the same Rule stipulates the
requirement of a two-year programme and a limit of 20 students in a class offered by law
degree awarding institutions. Both bodies are therefore entrusted with the momentous
responsibility of carrying out continuous monitoring and scrutiny of law colleges and
authorizing only those that impart good quality education. Furthermore, cooperation between
the Bar Councils, HECP and law colleges also has far reaching effects in terms of
development in the law. Therefore law degree awarding institutions must comply with the
guidelines and rules framed by the Bar Councils from time to time.
10. A well-structured curriculum also fosters quality education with enduring results. The
law degree curriculum should effectively impart academic knowledge and hone skills of
argument, legal analysis and linguistic communication. Examples in this regard can be taken
from leading law schools in the world that offer multifaceted curricula inclusive of clinical
legal education, mooting, mock trials, client interviewing, negotiation and mediation to
provide students with an insight into the practical requirements of law practice. The need for
legal education to be multidisciplinary is expressed in the PBC judgment in the following
words:
 14. "Legal education should not only cater for those students who study to pursue law
as a career but should also provide instructional and research facilities to those who
aim at becoming researchers, academicians or critics in the domain of law. The
discipline of law encompasses almost every dimension of social life. Before students
join a professional law course, they need to have a multidisciplinary academic base..."
(at p. 400)
11. One of the essential canons of professional conduct is the codification of legal ethics
in order to inculcate ethical standards and social responsibilities in legal practitioners. This is
greatly emphasized upon in other jurisdictions such as the UK where Professional Ethics is a
compulsory module taught in the Bar Professional Training Course. Incorporating legal
ethics in law curricula is vital for making students aware of the ethics, professional
responsibilities, fiduciary obligations and discipline expected of them as future legal
practitioners. Another important skill for the practice of law as stipulated in Rule 9 is
proficiency in the English language. Law colleges must strive that English as a medium of
instruction of legal subjects is adopted so that students are adequately proficient before they
graduate. It is also particularly beneficial that, apart from substantive and procedural law,
law colleges include social sciences such as sociology, economics and political science in
their curricula to inform students about growing number of specialised fields in the legal
profession.
12. In the foregoing perspective, it is advantageous that a five year LL.B. programme is
introduced in law colleges that are not already offering it. This would provide the time and
exposure to ensure a complete and comprehensive legal education where students can
adequately learn and acquire the knowledge, skills, values and practical judgment required
for the legal profession. In this regard the HECP has recommended a Standardized
Curriculum Format for LL.B (5 years) degree programme which provides guidelines for the
regulators, PBC and HECP, and the law degree awarding institutions. This is attached as
Annexure-I to this judgment for illustrative purposes and subject to enforcement to the extent
directed by the regulators.
13. For faithfully discharging their duty under the Rules, the law degree awarding
institutions also have a crucial responsibility of ensuring availability of adequate resources,
infrastructure and a faculty that is well equipped to provide quality education. To maintain a
good standard of education, it is necessary that instructors possess the relevant academic
qualifications, experience and a high degree of competence. In this regard, a faculty
comprising of practising lawyers and retired judges is generally well placed to provide
students with a realistic view of the practice of law. Faculty members should also assist in
administrating the admission procedure and policies, curriculum, methods of teaching and
examination to maintain high academic standards as well as closely supervise each student's
academic performance to ensure the best possible results. Equally, it is imperative that
institutions set clear educational objectives or learning outcomes for students to effectively
meet both educational and professional requirements. Law degree awarding institutions must
therefore devote adequate resources to a law library, co-curricular activities such as mooting
and student support services academic and career advice. As regards infrastructural
requirements stipulated in Rule 25 under the Affiliation Rules, law colleges must have at
least ten classrooms, a common room, adequate toilets, cafeteria, first aid facilities and so
forth. During inspection of one of the colleges, it appeared that libraries in 13 out of 32
colleges were either locked or had insufficient resources while only 3 amongst 32 colleges
maintained an attendance record of its students even though Rule 28 mandates law colleges
to maintain as well as display an attendance record. It is clear that without a competent
faculty or sufficient resources, students with the necessary skills for working in a challenging
and expanding legal environment cannot be produced. Due consideration must also be given
by provincial and federal governments to allocate sufficient resources for the improvement of
legal education. The State has a duty to promote the fundamental right of access to justice. In
the course of time, the quality of legal education reflects upon the professional capabilities
available in the Bar. These capabilities are extremely important both for assuring competent
legal advice to the disputant parties in a controversy and also for competent legal assistance
being provided to Courts and other dispute resolution fora. Prompt and good judgments and
determinations improve governance, foster economic activity, progress and peace in society.
This entire cycle of empowering persons and institutions realizes the constitutional goal of
strengthening the Rule of Law in the society.
14. Once young professionals are admitted to the Bar, it is necessary that they continue to
evolve, learn and improve their skills and knowledge to maintain consistency with a
progressing legal environment. As a matter of fact, some foreign jurisdictions require
mandatory/ minimum continuing legal education (CLE) or continuing professional
development (CPD) for lawyers and attorneys to undertake after they are admitted to the Bar.
This mandatory continuing education requirement ensures that lawyers keep abreast with the
developments in law and jurisprudence, maintain professional ethical standards and enhance
the quality and calibre of their practice of law. As held by the Supreme Court of Canada in
Sidney Green v. the Law Society of Manitoba (2017 SCC 20) at page 1:
"A lawyer's professional education is a lifelong process. Legislation is amended, the
common law evolves, and practice standards change as a result of technological
advances and other developments. Lawyers must be vigilant in order to update their
knowledge, strengthen their skills, and ensure that they adhere to accepted ethical and
professional standards in their practices."
In a similar manner the Institute of Chartered Accountants of Pakistan (ICAP) has put in
place Quality Control Review (QCR) framework for mandatory quality assurance and
compliance of professional standards amongst practitioners and firms engaged in audit. It is
therefore imperative that such a system is also devised in the legal profession where
practicing lawyers are continuously tested to ensure that they have the requisite knowledge
of the law and amendments or developments thereof. Academic qualifications alone do not
suffice and to maintain quality at the Bar, legal education must be treated as a continuous
process and promoted as a priority. In this regard, senior members of the Bar have a duty to
contribute to the learning and grooming of entrants during the mandatory apprenticeship
period by imparting their knowledge and expertise of different areas of practice.
15. In the foregoing perspective and vision for the legal profession and in light of the
recommendations submitted by the Special Committee, this Court vide its short order dated
31.08.2018 (as amended on 13.12.2018) was pleased to formulate the following directions in
the matter of legal education. These directions are reproduced below:
"Court's declarations and directions:
 1. Restoration of Bar Entrance Examination [Law Graduate Assessment Test (LAW-
GAT)].
A Law Graduate Assessment Test (LAW-GAT) of law graduates seeking enrolment
to the Bar shall be held on quarterly basis by HECP as the executing institution
throughout Pakistan based on a question bank prepared for the Assessment Test.
2. Test for Entry to Law College (Law Admission Test) (LAT).
A law admission test for all law colleges in Pakistan shall be held biannually by the
HECP. The outline of such a law admission test is given below:
"LAW ADMISSION TEST (LAT)
Division of Questions Marks Nature of Questions
Essay (either in English or 15 200 words maximum
Urdu)
Personal Statement (either in 10 200 words maximum
English or Urdu)
MCQs:
MCQs: English 20 Synonyms/Antonyms/
Prepositions
MCQs: General Knowledge 20
MCQs: Islamic Studies 10
MCQs: Pak Studies 10
MCQs: Urdu 10 Vocabulary
MCQs: Math 05 Basic Math
Total Marks 100
3. Specification of Affiliating Universities and their territorial jurisdiction.
The following universities are recognized and authorised by the PBC under the Rules
to be law degree awarding institutions. The territorial jurisdiction of each such
university is indicated against its name:
Sr. Affiliating University Area of Jurisdiction
No.
1. University of Balochistan Whole of the Province
2. University of Peshawar Districts and Civil Divisions of
Peshawar, Malakand and Mardan.
3. Gomal University, D.I.K Districts and Civil Divisions of D.I.Khan,
Bannu and Kohat.
4. University of Hazara, All the District of Hazara Division.
Mansehra
5. University of the Punjab, Districts and Civil Divisions of Lahore,
Lahore Gujranwala, Sargodha, Faisalabad,
Sahiwal and Rawalpindi.
6. Bahauddin Zakariya District and Civil Divisions of Multan
University, Multan and Dera Ghazi Khan.
 7. Islamia University, All Districts of Bahawalpur Division.
Bahawalpur
8. Karachi University All Districts and Civil Division of
Karachi.
9. University of Sindh, All Districts and Civil Divisions of
Hyderabad Hyderabad, Mirpur Khas and Shaheed
Benazirabad.
10. Shah Abdul Latif Districts and Civil Divisions of Sukkur
University, Khairpur and Larkana.
11. Quaid-e-Azam University, Islamabad Capital Territory.
Islamabad.
4. Ban against conducting LL.M. and Ph.D. in law classes by the Universities/
Colleges / institutions that are not allowed to hold LL.B. classes.
The universities and institutions that are not recognized and authorised by the PBC to
confer LL.B. degree shall not impart legal education to students at LL.M. and Ph.D.
levels or to admit students to either of such programmes. The same rule applies to law
colleges affiliated to such universities and institutions.
5. Limit on admission to LL.M. and Ph.D. programmes in law and ban on mushroom
admissions to these programmes as per criteria of HECP.
Admission to LL.M. and Ph.D. programmes by an authorised law
college/university/institution shall be granted on the criteria laid down by HECP,
including, the ceiling on the number of students fixed for admission to such
programmes.
6. Designing of Curriculum for five year LL.B. Programme - annual and semester.
The HECP National Curriculum Review Committee along with the representative of
the PBC sub-committee has finalized the Curriculum for a five year LL.B. programme
to be run on the basis of an annual or semester system of examinations. The salient
aspects of the Curriculum are attached as Annexure-I.
7. Qualification of faculty (permanent and visiting) at law colleges.
The university / degree awarding institution / law College imparting legal education
at the level of LL.B. programme shall hire law faculty members/ teachers as under:
(i) The Dean Law Faculty/Head of Law Department/Principal of law college shall be
Ph.D. in law with 8 years law teaching experience/practice experience in High Court
or Masters Degree in Law with 15 years law teaching experience/practice experience
in High Court or a retired Judge of the Supreme Court or a High Court or a retired
District and Sessions Judge having 5 years of judicial service to his credit;
(ii) At least five permanent/whole time faculty members/teachers having a Masters
degree in law with 5 years law teaching experience/practice experience in High Court
or having a Bachelors degree in law with 10 years law teaching experience/practice
experience in High Court; and
 (iii) There shall be at least five part time/visiting faculty members/teachers having 5
years standing as Advocates of High Court.
(iv) The above standard ratio of permanent and visiting faculty shall be followed to
meet the needs of up to 100 students. Additional students shall be catered by
increasing faculty strength according to the said ratio.
8. Affiliating Universities to constitute separate Affiliating Committees for law colleges
within their territorial jurisdiction.
Every affiliating university shall constitute a separate Affiliating Committee for
initial and annual inspection of its affiliate law colleges and to take immediate action
against those affiliate law colleges which are non-compliant with the rules framed by
the PBC and the applicable rules of the affiliating university itself.
9. Ban on admission to 3 year LL.B. programme.
A five years LL.B. programme shall be offered by all law colleges and institutions
with effect from September, 2018. The current three years LL.B. programme shall
continue until Fall, 2018 however, no further admissions shall take place in the three
year LL.B. programme after December 31, 2018 at any law college or institution.
10. Ban against holding of evening classes Colleges/Universities.
There shall be a complete ban on evening classes being offered at all law
colleges/universities across Pakistan.
11. Introduction of Special Equivalence Examination for Law Graduates of foreign
universities (by HECP).
No law graduate from any foreign university recognized by the Pakistan Bar Council
shall be allowed to take the Law Graduate Assessment Test (LAW-GAT) unless he or
she passes a Special Equivalence Examination for law graduates of foreign
universities which shall be held periodically by HECP in the following five subjects:
1) Constitution of Pakistan
2) Civil Procedure Code
3) Criminal Procedure Code
4) Qanun-e-Shahadat
5) Specific Relief Act
12. Bar Vocational Course:
The Provincial/Islamabad Bar Councils may introduce "Two Weeks Bar Vocational
Course" during the six months training/pupillage period that a law graduate intending
to join the legal profession must undergo for being enrolled as an Advocate for
practicing law. The Provincial/Islamabad Bar Councils may, however, consider and
decide modalities for introducing the said course through respective Federal/
Provincial Judicial Academies.
13. Allocation of Funds in Federal and Provincial Budgets for promotion of legal
education:
The Federal and Provincial Governments may be canvassed by the PBC and
Provincial/ICT Bar Councils for allocation of substantial funds in the annual Federal
and Provincial Budgets for promotion of legal education by the PBC.
14. Salary package and payment of non-practicing allowance for permanent members of
law faculties:
For securing services of competent and experienced law faculty on a permanent basis,
concerned authorities in the Federal and Provincial Governments and the universities
and law colleges shall ensure that a reasonable salary package and non-practicing
allowance is paid to the qualified law teachers in the respective universities/law
colleges. This is necessary for enhancing and maintaining the standard and quality of
legal instruction. The HECP being the apex regulatory authority of the recognized and
authorized universities shall play a guiding role in the foregoing regard.
15. Assessment/Evaluation of Examination:
The HECP shall, in collaboration with universities imparting legal education and the
PBC, consider the matter of assessment/ evaluation of the examinations for LL.B
classes exhaustively and make recommendations for updating and improving the
current system of such examination to make it more relevant, practicable and
reflective of the real talent and potential of candidates.
16. Establishment of autonomous Secretariat/Directorate of Legal Education in the
Pakistan Bar Council:
For improvement of the standard and quality of legal education in the country,
concerted and well-planned efforts shall be made to establish a full-fledged and
adequately equipped autonomous Secretariat/Directorate of Legal Education in the
PBC. For this purpose active and meaningful logistic and financial support of the
Federal Government shall be secured by the PBC. The Supreme Court of Pakistan
shall for this purpose endeavour to project the need for an autonomous Secretariat/
Directorate of Legal Education.
17. Constitution of Implementation/Monitoring Committee:
An Implementation/Monitoring Committee for enforcing the directions given herein
shall be constituted by the PBC which shall be chaired by Chairman, HECP or a
senior functionary nominated by him.
18. Immediate closing down of unauthorised law colleges:
A university that neither offers a law programme nor is recognized by the PBC shall
not unauthorisedly grant affiliation to any institution pretending to be a law college.
Accordingly, the following law colleges shall immediately be closed down for the
reason that their affiliating university/Shaheed Benazir Bhutto University,
Benazirabad is not recognized or authorised by the PBC to offer a LL.B. programme:
(1) Leons Law College, Shaheed Benazirabad.
 (2) Intelligentia Law College, Moro.
(3) Shaheed Benazir Bhutto Law College, Naushahro Feroze.
(4) Ali Law College, Sanghar.
(5) Shah-e-Ali Law College, Tando Adam.
19. Disaffiliation of sub-standard law colleges:
The following law colleges affiliated to their corresponding universities having been
found below the mark and for being outside the territory of their affiliating university
have been recommended by the special Committee of PBC to be disaffiliated:
(a) University of Peshawar:
(1) Abbot Law College, Abbottabad.
(2) Abbott Law College, Mansehra.
(3) Ayub Law College, Hairpur.
(4) Frontier Law College, Peshawar.
(5) Islamia Law College, Peshawar.
(6) Jinnah Law College, Peshawar.
(7) Justice Law College, Abbottabad.
(8) Kohat Law College, Kohat.
(9) Mardan Law College, Mardan.
(10) Muslim Law College, Swat.
(11) Peshawar Law College, Peshawar. .
(12) Quaid-e-Azam Institute of Legal Studies, Nowshera.
(13) Sanni Islamia Law College, Haripur.
(14) Supreme Law College, Peshawar.
(15) Swabi Law College, Swabi.
(b) University of Hazara, Mansehra:
COLES-College of Legal and Ethical Studies, Abbottabad.
(c) Gomal University, D.I. Khan:
(1) Danish Kada Law College, Miryan Gate Bannu.
(2) Frontier Law College, D.I. Khan.
(3) Institute of Legal and Management Sciences, Islamabad.
(4) Luqman Law College, D.I. Khan.
(d) University of Baluchistan, Quetta:
(1) Zarghoon Law College, Quetta.
 (2) Jhalawan Law College, Khuzdar.
(e) University of Sindh, Hyderabad:
(1) Everest Law College, Hyderabad.
(2) SISTEC, Sukkur.
(f) Shah Abdul Lateef University, Khairpur:
(1) Al-Falah Law College, Kashmore.
(2) Abdul Wahid Soomro Law College, Kashmore.
(3) Mirza Khan Law College, Panu Aqil.
(4) Mashal Law College, Dahrki, Dahrki.
(5) Bilawal Bhutto Law College, Jaccobabad.
(6) Faiz Muhammad Sehto College, Kandiaro.
(7) Bilawal Bhutto Zardari Law College, Qambhar.
(g) Bahauddin Zakriya University, Multan:
(1) South Punjab Law College, Multan.
(2) Professional Law College, Multan.
(3) Multan Law College, Multan.
(4) Times Institute, Multan.
(5) Muhammadan Law College, Multan.
(6) Central Law College, Multan.
(7) Merit Law College, Multan.
(8) Pakistan Law College, Multan.
(9) Sargodha Toppers Law College, Multan.
(10) Kaims International Law College, Multan.
(11) Ayan Law College, Multan.
(12) Sir Syed Law College, Multan.
(13) Justice Law and Education College, Multan.
(14) International Law College, Multan.
(15) Noor Law College, Multan.
(16) Quaid-e-Azam Law College, Sahiwal.
(17) Montgomery Law College, Sahiwal.
(18) Muhammadan Law College, Sahiwal.
 (19) Command Law College, Sahiwal.
(20) Multan Law College, Sahiwal.
(21) Johar Law College, Sahiwal.
(22) Limit Law College, Sahiwal.
(23) Leads Universal Law College, Khanewal.
(24) Progressive Law College, Vehari.
(25) Askari Law College, Burewala.
(26) Justice Law College, Pakpattan.
(27) Pakistan Law College, Pakpattan.
(28) Jinnah Law College, Dera Ghazi Khan.
(29) Multan Law College, Dera Ghazi Khan.
(30) Ghazi Khan Law College, Dera Ghazi Khan.
(31) Indus Law College, Dera Ghazi Khan.
(32) Justice Law and Education College, Muzaffargarh.
(h) University of the Punjab, Lahore:
(1) Capital Law College, 313-A, Murree Road, Rawalpindi.
(2) Muslim Law College, 89-A, Satellite Town, Rawalpindi.
(3) East and West Education System, Department of Legal Studies, House # 18,
Street # 60, 11/4, Islamabad.
(4) Islam Law College, Pasrur Road, Sialkot.
(5) The College of Law, G.T. Road, Gujranwala.
(6) Muhammadan Law College, Sharqpur Road, Sheikhupura.
(7) Muhammadan Law College, 3-Km Sargodha Road, Sheikhupura.
(8) The Jurists College of Law Gulberg Town, Opp. Honda Show Room, Lahore
Road, Sargodha.
(9) Chenab Law College, Jalalpur Jattan Road, Gujrat.
(10) The College of Law, Kanjrur Road, Narowal.
(11) CIMS School of Law, Lahore.
(12) Leads Law College, Township, Lahore.
(13) PSE Law College, Nain Sukh, Saqian, Lahore.
(14) Farabee Law College, Hafizabad.
(15) Allama Iqbal Law College, Sialkot.
(16) Premier Law College, Gujranwala.
 (17) Quaid-e-Azam Law College, Okara.
(18) National Law College, Lahore.
(19) Global Law College, Shahdara, Lahore.
(20) Institute of Law, Gulberg, Lahore.
(21) Asian Law College, Gulberg Town, Lahore.
(22) City Law College, Allama Iqbal Road, Lahore.
(23) Lahore Law College, Gulberg, Lahore.
(24) Shams Tabriz Law College, Ferozepur Interchange, Lahore.
(25) The National Institute of Legal Studies, Attock.
(i) Islamia University, Bahawalpur:
(1) Narowal Law College, Narowal.
(2) Heritage International College, Hafizabad.
(3) Cambridge Law College, Wazirabad.
(4) M.A. Law College, Gujrat.
(5) Al-Mizan Institute of Legal Studies, Islamabad.
(6) Jinnah Muslim Law College, Islamabad.
(7) Cornelius Law College, Sargodha.
(8) Zain Law College, Bhakkar.
(j) Before disaffiliation of any of the above said colleges is implemented, they shall be
issued notice of fault or deficiency by the concerned affiliating university thereby
granting them opportunity to be heard and being provided with reasons of the order
passed by the concerned university in accordance with its rules of affiliation that are
available to law colleges established and functioning within the territorial limits
prescribed hereinabove.
20. Accommodation of law students in eventuality of disaffiliation of some law colleges:
The adjustment of law students who are affected by the disaffiliation of their law
colleges shall be pursued by the concerned affiliating universities which shall be
responsible to assure that such students are enabled to pursue their ongoing LL.B.
programme till completion.
21. Law departments of Universities and law colleges which need improvements in their
weak areas within six months:
The following law colleges that are run by or affiliated to universities need to
overcome weak areas of their LL.B. programmes offered by them are given six
months for doing so:
(a) University of Balochistan:
(1) City Law College, Quetta;
 (2) University of Balochistan Law College, Peshin Campus;
(3) School of Law, University of Turbat; and
(4) Law College of University of Balochistan Kharan Campus.
(b) University of Karachi:
(1) Department of Law, University of Karachi.
(2) Government Islamia Law College, Karachi.
(c) Shaheed Benazir Bhutto, University, Malir-Karachi:
Shaheed Zulfiqar Ali Bhutto Law College, Malir.
(d) University of Sindh:
Dinsh Mehran Institute of Law (SMIL), Jamshoro.
(e) Shah Abdul Lateef University, Khairpur:
(1) Shaheed Zulfiqar Ali Bhutto, College of Law, Khairpur.
(2) Qazi Mian Ahmed Law College, Moro.
(3) Law College, Ghotki,
(4) SDK Law College, Jaccobabad.
(f) Federal Urdu University, Karachi:
The Federal Urdu University having violated Rules and instructions of the Pakistan
Bar Council was firstly placed under suspension and then was derecognized; it is
presently non-functional. It shall remain suspended till its application for restoration
of recognition by the Pakistan Bar Council is decided by the Legal Education
Committee of the Pakistan Bar Council. The following campuses have been found
lacking:
(1) Department of law, Gulshan Campus.
(2) Department of law, Abdul-Haq Campus
(g) University of the Punjab:
(1) The Best Law College, Rawalpindi.
(2) Rawalpindi Law College, Rawalpindi.
(3) Himat-i-Islam Law College, Lahore.
(4) Superior College of Law, Lahore.
(5) Toppers Law College, Gulberg, Lahore.
(6) Gujrat Law College, Gujrat.
(7) Institute of Legal Studies, Gulberg, Lahore.
(8) Faisalabad College of Law, Faisalabad.
(9) Muhammad Ali Jinnah Law College, Gujranwala.
 22. Sole recourse before the Supreme Court:
Any university or affiliated college that is aggrieved by a final order/action taken in
pursuance of these directions after exhausting any remedy under the University Rules
shall avail as the first judicial remedy, appropriate relief from this Court. Recourse to
any other judicial forum without permission of this Court is barred.
16. Consequently, Constitution Petition No.134 of 2012 and Civil Misc. Application
No.1864 of 2010 in Constitution Petition No.9 of 2005 stand disposed of in the above terms.
All ancillary Misc. Applications to this matter and listed in the title of this case also stand
disposed of accordingly.
17. These are the detailed reasons of our short order dated 31.08.2018.
MWA/P-4/SC Order accordingly.

P L D 2019 Peshawar 145

Before Ikramullah Khan and Muhammad Ibrahim Khan, JJ
Syed AZIZ-UD-DIN KAKAKHEL---Petitionere
Versus
GOVERNOR KHYBER PAKHTUNKHWA through Principal Secretary and 8 others---
Respondents
Writ Petition No.4627-P of 2018, decided on 13th March, 2019.
(a) Constitution of Pakistan---
----Arts. 140 & 193(2)---Advocate-General of Province, appointment of---Eligibility---
Qualification for appointment of an Advocate-General would be construed in terms of
Art.193 of the Constitution (which provided qualifications for appointment as a Judge of the
High Court)---Person less than 45 years, shall not be competent to be appointed as an
Advocate-General, however the retiring age (of 62 years) for a Judge of the High Court as
mentioned in Art.195 of the Constitution, could not be applied to be a disqualification for the
appointment of an Advocate-General---Since no retiring age had been prescribed in the
Constitution for an Advocate-General, therefore, the (retiring) age (of 62 years) prescribed
under Art.195 of the Constitution for a Judge of High Court could not be counted or deemed
to be a disqualification for appointment of a person as Advocate-General.
Secretary Ministry of Law Parliamentary Affairs and Human Rights Government of
Punjab v. Muhammad Ashraf Khan and others PLD 2011 SC 7 ref.
(b) Constitution of Pakistan---
----Art. 140---Advocate-General of Province, appointment of---No provision of the
Constitution prescribed that Advocate-General of a Province shall be appointed by the
Governor with consultation of Chief Justice of the concerned High Court.
(c) Constitution of Pakistan---
----Art. 140---Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 5B---Advocate-
General of Province---Removal simpliciter from office---Re-appointment to the same office
of Advocate-General---Plea of petitioner that the incumbent Advocate-General/respondent
was previously removed from the same office, vide a notification and as such, he could not
be re-appointed as Advocate-General, in view of S.5B of the Legal Practitioners and Bar
Council Act, 1973---Held, that the Notification whereby the respondent was earlier removed
from office of Advocate-General itself reveled that his services were dispensed with in
exercise of power exercised by the Provincial Governor under clause (3) of Art.140 of the
Constitution and as such his removal could not be deemed to be or treated as a removal from
service as a result of any misconduct or any other disciplinary action, which entailed
stigma---Such removal was a removal simpliciter in terms of Art.140 of the Constitution---
Advocate-General of Province held office during pleasure of the Provincial Governor and the
Governor may at any time, de-notify or dispense with services of the Advocate-General
without assigning any reasons and without any prior notice in such regard, therefore, such
removal did not entail any stigma or disqualification, in order to re-appoint the same person
on any public post, including the office of the Advocate-General---Furthermore the
respondent was not issued any show-Cause notice by the respective Bar Council in order to
cancel his licence on account of his mere removal from the office of Advocate-General.
(d) Khyber Pakhtunkhwa Appointment of Law Officers Act (XXXVII of 2014) ---
----S. 3 & Preamble---Khyber Pakhtunkhwa Appointment of Law Officers (Amendment)
Act, 2018, Preamble---"Khyber Pakhtunkhwa Appointment of Law Officers Act, 2014" and
"Khyber Pakhtunkhwa Appointment of Law Officers (Amendment) Act, 2018", vires of---No
illegality or un-constitutionality was found in both the said enactments---High Court
observed that although in terms of S.3 of the Khyber Pakhtunkhwa Appointment of Law
Officers Act, 2014, the Provincial Government had been authorized to appoint Law Officers
but it would not be improper or unreasonable that while appointing Law Officers, the Chief
Justice of the High Court was meaningfully consulted, in order to select and appoint the best
lawyers as Law officers, in larger public interest and to remove all sort of political
consideration (if any) in the matter of their appointment---Constitutional petition was
dismissed accordingly.
Petitioner (in person).
Waqar Ahmad Khan, A.A.G. for Respondents.
Barrister Waqar Ali Khan for Respondent No.11
Date of hearing: 13th March, 2019.
JUDGMENT
IKRAMULLAH KHAN, J.--Through the instant Constitutional
petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973,
petitioner has prayed for the following relief:-
"It is, therefore, most humbly prayed that on acceptance of this writ petition this
Hon'ble Court may please be…..
1. Declare the appointment of respondent No.11, vide Notification No. E&A/LD/2-
13/2018 dated 30.08.2018 issued by respondent No.1 as null and void ab-initio in the
eyes of law and constitution and he be removed from the office of Advocate-General
forthwith
2. Declare the Khyber Pakhtunkhwa Appointment of Law Officers Act, 2014 passed
on 14th December 2014 and amended act Khyber Pakhtunkhwa Appointment of Law
Officers (Amendment) Act 2018 as null and void ab-initio for the basis interest of
Justice and in the best interest of the public at large.
3. Direct the respondents Nos.1 to 4 to appoint the Advocate-General for the Province
according to the qualification laid down for the appointment to be a Judge of High
Court i.e.
i. Citizen of Pakistan.
ii. Shall not less than forty five years and more than sixty two years of age.
iii. Shall not less than ten years practical experience been an advocate of High Court
and
iv. Shall consult with the Hon'ble Chief Justice of High Court.
4. Direct the respondents Nos.1 to 4 to appoint the Law Officers to:-
i. With prior consultation with the Hon'ble Chief Justice of High Court or committee
constituted for the said purposes as the case may be and,
ii. According to the following mandatory qualification,
a. To obtain clearance as well as practicing professionalism, good character and no
inquiry Certificate from the Khyber Pakhtunkhwa Bar Council or Pakistan Bar
Council, if any.
b. To obtain the same Certificate form his/her concerned District Bar Association
where the proposed Law Officer is on roll.
c. To obtain the same Certificate from his/her concerned High Court Bar Association
where the proposed Law Officer is on role.
d. To obtain the same Certificate form the concerned Head of District Judiciary i.e.
the Learned District and Sessions Judge, where the proposed Law Officer is on roll.
e. To submit sworn affidavit regarding his/her good conduct, non-involvement in any
case, non-pendency of any inquiry.
f. To submit list of 100 cases excluding miscellaneous matters, independently for
Additional Advocate-General and 50 cases for Assistant Advocate-General conducted
by him/her along with copies of detail judgments.
g. For Additional Advocate-General.
* Is enrolled as an Advocate of Supreme Court or High Court and has for a period of
not less than ten years been an Advocate of High Court and For Assistant Advocate-
General.
 * Is enrolled as an Advocate of High Court and has for a period of not less than eight
years been an Advocate of High Court.
h. To obtain fitness Certificate form the Committee, comprised of
* The Hon'ble Chief Justice (Chairman)
* Administrative Judge of the High Court for the concerned District where the
proposed Law Officer is enrolled, (member)
* The learned District and Sessions Judge of the concerned District where the
proposed Law Officer is enrolled. (member).
* Member of the Khyber Pakhtunkhwa Bar Council, (member)
* President of the Peshawar High Court Bar Association, (member).
* The Worthy Registrar of the Peshawar High Court (Secretary).
i. To discourage Dual or Multiple nationality a Certificate or Affidavit about
Nationality of Pakistan. Or
j. Any other suitable qualification in the best interest of the public at large and justice.
Or any other relief if this Hon'ble Court deem it proper may also be awarded in favour
of petitioner".
2. Petitioner has challenged the appointment of the respondent who had been appointed
by the Worthy Governor of Khyber Pakhtunkhwa vide Notification No.E&A/LD/2- 13/2018
dated 30.08.2018 as Advocate-General Khyber Pakhtunkhwa on the following grounds:-
1. That the respondent was not illegible to be appointed on the post of Advocate-General
as he was overage.
2. That he was removed from the office of Advocate-General vide Notification dated
26.06.2018 and as such, in view of section 5 (b) of the Legal Practitioners and Bar
Councils Act, 1973 at the decision of the impugned appointment was not an Advocate
and Advocate-General could only be appointed amongst the Advocates bears his
name on the role of Provincial or Pakistan Bar Council.
3. Petitioner has also challenged the vires of Khyber Pakhtunkhwa Appointment of Law
Officers Act, 2014.
4. On the other hand, learned counsel for respondent argued that the appointment of the
respondent was legal, justified and no legal infirmity, could be found, there in his
appointment, being the most senior Advocate of Supreme Court having a legal practice,
experience of more than 44 years, no retiring age has been prescribed either by any rules, law
or Constitution for the office of Advocate-General; that the removal of respondent, therefrom
the office of the Advocate-General, by interim Government was not in pursuance of any
misconduct, disciplinary proceeding but the same was on account of change of the cabinet
and in view of the power of the worthy Governor of Khyber Pakhtunkhwa in terms of Article
140 of the Constitution and such removal carries no stigma to disqualify him to be an
Advocate.
 5. We have heard learned counsel for the parties in light of law and Constitution of
Islamic Republic of Pakistan, 1973 and facts available on record.
6. It is constitutional requirement in term of Article-140 of the Constitution that the
Governor of each province shall appoint an Advocate-General for each province in the
prescribed manner. For convenience Article 140 of the Constitution, if reproduce would be
read as:-
"140. Advocate-General for a Province.- (1) The Governor of each Province shall
appoint a person, being a person qualified to be appointed a Judge of the High Court,
to be the Advocate-General for the Province.
(2) It shall be the duty of the Advocate-General to give advice to the Provincial
Government upon such legal matters, and to perform such other duties of a legal
character, as may be referred or assigned to him by the Provincial Government.
(3) The Advocate-General shall hold office during the pleasure of the Governor [and
shall not engage in private practice so long as he holds the office of the Advocate-
General].
(4) The Advocate-General may, by writing under his hand addressed to the Governor,
resign his office".
07. While Article 193 (2) of the Constitution prescribed the qualification of the Judge of
the High Court, which reads as:-
"193 (2) A person shall not be appointed a Judge of a High Court unless he is a
citizen of Pakistan, is not less than [forty-five] years of age, and -
(a) He has for a period of, or for periods aggregating, not less than ten years been an
advocate of a High Court (including a High Court which existed in Pakistan at any
time before the commencing day); or
(b) He is, and has for a period of not less than ten years been, a member of a civil
service prescribed by law for the purposes of this paragraph, and has, for a period of
not less than three years, served as or exercised the functions of a District Judge in
Pakistan; or
(c) He has, for a period of not less than ten years, held a judicial office in Pakistan".
8. No doubt, in accordance with the provisions contained in Article 193(2), the
minimum age for appointment of a Judge, prescribed therein is 45 years, however, in Article
193 of the Constitution, maximum age limit is itself not mentioned which is prescribed
thereunder Article 195 of the Constitution, which read as:--
"195. A Judge of a High Court shall hold office until he attains the age of sixty-two
years, unless he sooner resigns or is removed from office in accordance with the
Constitution".
9. The qualification for appointment of an Advocate-General, would be construed in
term of Article 193 of the Constitution, however the retiring age as mentioned in Article 195
of the Constitution, could not be applied to be a disqualification for the appointment of an
Advocate-General. A person less than 45 years, shall not be competent to be appointed as an
Advocate-General, but Article 193 of the Constitution, may not be construed in manner and
mode which altogether give a different interpretation to the plain meaning of Article 193, to
read as:
"A person shall not be appointed a Judge of High Court unless he is citizen of
Pakistan is not less than forty five years of age and more than 62 years of age".
10. The contention of learned counsel (petitioner) that as a person appointed as Advocate-
General had to be one who qualified for appointment as a Judge of High Court, therefore, he
could be deemed to be under the same disability as has been placed by the constitution on a
judge of a High Court in term of Article 195 of the Constitution, such contention is clearly
misconceived, as merely prescribing a certain qualification for appointment as Advocate-
General of a Province does not mean that he would be governed by the same disability as
applies to a Judge of a High Court.
11. Similar issue, under discussion also once came before the Apex Court in case titled
"Secretary Ministry of Law Parliamentary Affairs and Human Rights Government of Punjab
v. Muhammad Ashraf Khan and others" (PLD 2011 SC 7) wherein, the Apex Court is held
as:-
"14. In the recent case of State of Uttaranchal v. Balwant Singh Chaufal decided on
the 18th January 2010, Indian Supreme Court after considering all the earlier
judgments on the point, held that the issue has been fully settled that the Advocate
General for the State can be appointed after he/she attains the age of 62 years while
the Attorney General for India can be appointed after he/she attains the age of 65
years".
12. The second contention of the learned counsel that as respondent has been appointed
as Advocate-General, without consultation of the Chief Justice of Peshawar High Court, is
also not backing by any constitutional provision.
13. There is no any such provision, prescribed under Article 193 that Advocate-General
of a Province shall be appoint by the Governor with consultation to the Chief Justice of a
High Court.
14. This Court while deciding W.P. No.2566 of 2013 dated 22.10.2013 and W.P. No.1049
of 2018 dated 27.02.2018 has also held that as no retiring age has been prescribed, therein
Constitution itself for Advocate-General, therefore, the age prescribed under Article 195 of
the Constitution for a Judge of High Court could not be counted or deemed to be a
disqualification for appointment of a person as Advocate-General, more or above the age of
62 years.
15. The post of Advocate-General is also not a permanent one, however, the office of
Advocate-General is a permanent Constitutional office, Advocate-General shall hold office
during the pleasure of the Governor, while a Judge of a High Court, could only be de-notified
under the procedure prescribed under Article 209, so in sense both offices are different in
many respect, and any disqualification prescribed thereunder for a Judge of a High Court
could not be attributed to the post of Advocate General.
16. The third submission of the learned counsel (petitioner) that as the respondent was
previously removed, therefrom his office vide Notification No.E&A/LD/2-13/2018 dated
26.06.2018 and as such, he could not be re-appointed as Advocate-General, in view of
Section 5 (B) of the Bar Council Act, 1973, this contention is also highly misconceived.
17. The Notification dated 26.06.2018 itself reveals that services of the respondent were
dispensed with in exercise of its power envisaged by the Worthy Governor of KPK under
clause (3) of Article 140 of the Constitution and such removal of an Advocate-General could
not be deemed to be or to be treated as a removal from service as a result of any misconduct
or any other disciplinary action, which entails stigma.
18. It was a removal simpliciter in term of Article 140 of the Constitution and no any
show cause, is issued by respective Bar Council in order to cancel his licence on account of
his mere removal from the office.
19. As discussed hereinabove, an Advocate-General will hold office during pleasure of
the Governor and the Governor may at any time, de-notify or dispense with services of the
Advocate-General without assigning any reasons and without any prior notice in this regard,
therefore, such removal shall not entails any stigma or disqualification, in order to re-appoint
him on any public post, including the office of the Advocate-General. Therefore, the word
"remove" used in Notification No.E&A/LD/2-13/2018 dated 26.06.2018, issued by the
worthy Governor of Khyber Pakhtunkhwa may be rectified in order to remove any future
difficulty for the respondent career.
20. In so far as the 2nd part of the prayer of petitioner, wherein the vires of the Khyber
Pakhtunkhwa Act 2014 is challenged, we seem no any illegality, un-constitutionality, in the
Khyber Pakhtunkhwa Appointment of Law Officers Act 2014 (Amendment Act, 2018) being
passed by the Provincial Assembly of Khyber Pakhtunkhwa in accordance with the relevant
provisions ot the Constitution.
21. As to whether the said Act is against any provision of the Constitution or any Federal
law and either against the Provincial Bar Council Act, 1973 or Pakistan Bar Council Act,
1973 or the Rules made thereunder, petitioner did not satisfy us in this regard. However, law
making is the prerogative of the legislature, whereas in term of section 3 of the Khyber
Pakhtunkhwa Appointment of Law Officers Act, 2014, Government has been authorized to
appoint Law Officer but it would be not improper or unreasonable that while appointing Law
Officers, the Chief Justice of the High Court shall be consulted, in order to select and appoint
best lawyer, in larger public interest and to remove all sort of political consideration (if any)
in the matter of appointment of Law Officers. Learned Additional Advocate-General on
behalf of respondents also apprised the Court that relevant Amendment in the Khyber
Pakhtunkhwa Appointment of Law Officers Act, 2014 is under consideration, in order to
bring useful and purposeful amendment to include the Worthy Registrar of this Court to be a
consultant body in matter of appointing of Law Officer.
22. Irrespective of the legal proposition as to whether a High Court could direct the
legislature to amend a law, we would appreciate in best interest of public that in matter of
appointment of Law Officer, Political consideration at all be vindicated and it would be only
possible if to solicit the matter of appointment by meaningful consultation with the Chief
Justice of the High Court.
23. With the above observation, this petition is dismissed accordingly.
MWA/79/P Order accordingly.
P L D 2018 Sindh 122

Before Nazar Akbar, J

ABDUL SATTAR MANDOKHEL through Attorney and Executive Director---Plaintiff

Versus

Messrs KARACHI MUNICIPAL CORPORATION through Administrator---Defendant

Suit No.1553 of 2012, decided on 6th September, 2017.

Legal Practitioners and Bar Councils Act (XXXV of 1973)--

----Preamble---Constitution of Pakistan, Art. 10-A---Non-appearing of counsel---Code of

Conduct, violation of---Scope---Responsibility of Institutions/departments engaging counsel---
Scope---Non-attending the court by the counsel amounted to breach of the Code of Conduct of
Counsel towards client---Court issued notices to non-appearing counsel through Provincial Bar
Council purpose, being to ensure that Bar Council be aware of the conduct of its members---
High Court observed that in number of cases, despite orders of the Court no action had been
taken by the institutions like City Development Authority and Municipal Corporation against
delinquent counsel---Such conduct of the counsel in most of the cases could not be considered as
an oversight or mistake rather, to say the least, their wilful absence facilitated the Court in
passing adverse order against their clients---When huge public money was involved, court, in
absence of counsel was to be more careful---Different counsel, in the present case, had filed
power of attorney on behalf of the institution but they have appeared hardly on five dates out of
more than twenty dates of hearing---Not only in the present case, but in many other cases, High
Court had reported the matter of such conduct of counsel to the Provincial Bar Council for
action---Such absence of counsel was not only violation of conduct of lawyers provided under
the Legal Practitioners and Bar Councils Act, 1973 but it was also against the constitutional
guarantee for fair trial envisaged under Art.10-A of the Constitution---High Court further
observed that court alone could not guarantee "fair trial" and for quality judgment from the court,
the litigant and counsel both had to honestly contribute---High Court issued notice to the
Principal Law Officer of the Institution for next date of hearing with complete report of cases
decided for or against the Institution since 1-1-2017 till date along with reports from the audit
and accounts department that how much public money had been utilized by the Institution in
litigation in the name of professional fee of counsel and other miscellaneous expenses---All that
was necessary to check the possibility of collusion of legal department of the Institution and the
counsel and the litigants who sue the Institution or other semi government institutions for
recovery of money---Copy of the present order was directed by High Court to be sent to Head of
the Institution so that any remedial measures could be taken by them---Case was adjourned
accordingly.

Revision Application No.12 of 2001 ref.

 Muhammad Masood Khan for Plaintiff.

Nemo for Defendant.

Date of hearing: 6th September, 2017.

ORDER

NAZAR AKBAR, J.---This case against the semi Government seems to have been
abandoned by their lawyers. The defendant is least bothered despite the fact that a huge amount
of Rs.120,565,657/= claim has been awarded against it by the sole arbitrator. The Court diaries
show that the objections to the award were field by Mr. Q.J.A Mallick, Advocate on 13.12.2012
but thereafter as usual is the practice of more than 95% lawyers appearing on behalf of
KMC/KDA and City District Government none has even marked his attendance as Advocate for
the sole defendant i.e. KMC. The Lawyers of these institutions hardly express their willing to
contest the cases on merit. Keeping in view the responsibilities of the Court that the Court should
not be persuaded to pass any adverse order merely on the ground that the counsel for the other
side is not present, notices were issued to the counsel for the defendant through Sindh Bar
Councils on 15.8.2017 for today. The report of Bar Council shows that Mr. Muhammad
Waseemuddin Abid Shaikh, Advocate High Court, who filed his power on 09.12.2016 was duly
informed but he is absent. The. other lawyers who have been representing KMC prior to Mr.
Waseemuddin Abid Shaikh, Advocate. On receiving notices have informed the process server
that they are no more on the panel of KMC, Karachi Building Authority, KDA and Karachi
Water Board.

In the last order it was observed that non-attending the Court by the lawyers amounts to
breach of the code of conduct of Lawyers towards their client. The purpose of sending the
notices through Bar Council was to ensure that Sindh Bar Council should be aware of the
conduct of its members. This is one part of the story.

The other part 4 the story is more pathetic and unfortunate. The Semi Government
institution like KMC/KDA, after sending counsel, never takes care of even obtaining report of
progress of case from their counsel until the case is decided against them. It is, in my humble
view, criminal negligence on the part of the administrator of all these institutions. It has been
observed by this Court in several cases that despite orders of the Court no action has been taken
by the institutions like KDA and KMC against delinquent lawyers. Such conduct of the lawyers
in most of the cases cannot be considered as an ordinary oversight or mistake rather to say the
least their willful absence facilitate the Court in passing adverse order against their clients. Since
huge public money is involved and in absence of lawyers the Courts are required to be more
careful as at times such mysterious absence of lawyers without any reasons is possibly on some
unofficial communication to them that there shall be no accountability by the administration of
KMC/KDA etc. As a result even sanctity of Court is compromised and therefore, I believe in
ever growing corruption in the society it is the duty of the Court that the process of Courts should
not be allowed to be used for ulterior motives even unknowingly. Recently, even in a more grave
situation like this, in Revision Application No.12/2001 I was constrained to pass the following
order imposing heavy cost on KDA, and I quote.
 11. The above discussion was imperative' before conclusion of this judgment as the
corruption and connivance is rampant particularly in the institution like KDA and
KMC. In a recent judgment passed by this bench in Civil Revision No.14/ 1993,
an illegal occupant on Government Land had filed a frivolous suit in 1963 and
subsequently raised 20 shops and four residential units. In April 2016 after almost
53 years when the court directed the relevant authorities to remove illegal
construction/encroachment from the Government land it was not complied until
contempt notices were issued to the Director and Deputy Director Land KMC and
KDA for completion of the task which was even otherwise their statutory duty. In
the case in hand, as discussed above, the connivance of the official of KDA and
even the law department in perpetuating illegal occupation of the applicant on the
Government land, its conversion into residential and commercial use by him was
not possible without help of KDA officials. The help of KDA official is only
INACTION as long as the incumbent holds the relevant office. The result is
enormous. It goes without saying that in the process of perpetuating the illegality
both the applicant and the respondents have conducted themselves in such a
fashion that it has also adversely reflected on the image of the court.

12. In view of the above facts and discussion while dismissing this revision
application, I am constrained to impose cost of Rs.200,000/- on the applicant for
illegally occupying government land for 35-40 years including 26 years in courts,
and the respondents are also directed to deposit cost of Rs.100,000/- on account of
their willful inaction for 16 years which has definitely resulted in damaging the
image of judiciary. Both the parties should deposit their respective cost with the
Nazir of this Court within 15 days and in case of failure to deposit the cost the
Nazir may take any coercive measures for its recovery such as attachment of bank
accounts and/ or moveable/ immoveable properties of the defaulting party.

The heavy cost imposed by this Court on KDA for its failure to control the conduct of its
lawyers was challenged by KDA in appeal before the Hon'ble Supreme Court. The Hon'ble
Supreme Court has been pleased to uphold the aforesaid judgment. In the case in hand the
situation is not much different. The different lawyers of the defendant right from the date of
institution of the instant execution on 14.11.2012 have filed power on behalf of KMC but they
have appeared hardly on five dates out of more than 20 dates of hearing. Not only the case
quoted above but in many other cases, too, I have sent reports regarding such conduct of lawyers
to the Bar Council for action against the lawyers who are guilty of professional misconduct but
unfortunately neither the aforesaid judgment upheld by the Hon'ble Supreme Court has been able
to bring any change in the attitude of lawyers representing Semi Government institutions nor Bar
Council has even warned such counsel.

The responsibility of the semi government institutions or local governments is not limited
to engage a lawyer. Being litigant, it is their duty to be vigilant. It is not only violation of code of
conduct of lawyers provided under the Legal Practitioners and Bar Councils Act, 1973 but it is
also against the constitutional guarantee for fair trial envisaged under Article 10-A of the
Constitution of Islamic Republic of Pakistan, 1973. Court alone cannot guarantee "Fair Trial"
and for quality judgment from the Courts, the litigants and lawyers both have to honestly
contribute. By playing hide and seek, the lawyers cause unnecessary delay in disposal of cases
and unfortunately only "Courts" are blamed for the delay. Therefore, I believe before
proceedings further in this case almost ex parte despite service and having engaged a lawyer by
the Judgment Debtor, I feel it is the duty of the Court to call the Chief Law Officer of KMC in
Court before passing any adverse orders even on merit or otherwise, merely on the failure of the
Law Officer of KMC to contest.

Issue notice to Mr. Saeed Akhtar, Principal Law Officer of KMC for 10.10.2017 at 11:00
am to be present in Court with complete report of cases decided for or against the KMC since
01.01.2017 till date along with reports from the audit and accounts department that how much
public money has been utilized by KMC in litigation in the name of professional fee of lawyers
and other miscellaneous expenses. All this is necessary to check the possibility of collusion of
Law Department and the lawyers with litigants who sue KMC or other semi government
institutions for recovery of money. Such report should be presented before this Court on
10.10.2017. Copy of this order be sent to the Mayor and Deputy Mayor of Karachi Municipal
Corporation so that any remedial measures may be taken by them.

Adjourned; to come up on 10.10.2017 at 11:00 am.

MQ/A-102/Sindh Order accordingl

2018 C L C 664

[Sindh]

Before Nazar Akbar, J

ABRAR HUSSAIN----Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE, SOUTH KARACHI and 13 others----

Respondents

C.P. No.S-639 of 2010, decided on 24th November, 2017.

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----Ss. 41(2)(4) Proviso, 42 & 55---Legal Practitioners and Bar Councils Rules, 1976, Chap.
XII---Civil Procedure Code (V of 1908), Ss.151 & 153---Constitution of Pakistan, Art.199---
Constitutional petition---Canon of professional conduct and etiquette of advocates---
Misconduct---Dispute as to property---Constitutional petition filed for recalling an earlier order
of dismissal of petition being not pressed, was not supported by affidavit---Application under
Ss.151 & 153, C.P.C. was not filed on behalf of the petitioner by the advocate who also
submitted his own affidavit---Validity---Lawyer earns a reputation worthy of some value by
demonstrating his sincerity and honest conduct both towards his client and court in
administration of justice---Upright lawyer is supposed to be an officer of court fairly assisting
court in dispensing justice and not slave of his client nor greedy to serve him against law and
facts---Lawyer has to contest cases on merit and merit alone, he was to adhere to standards of
duties of lawyer explained in Chapt.XII (Canon of Professional Conduct and Etiquette of
Advocates) of Legal Practitioners and Bar Councils Rules, 1976---Counsel for petitioner, in the
present case, filed application in question on his own without any authority from anyone---High
Court directed Pakistan Bar Council to initiate disciplinary proceedings against the counsel for
professional misconduct by treating contents of order as complaint under S.41(2) of Legal
Practitioners and Bar Councils Act, 1973---High Court further directed the Tribunal for decision
in terms of proviso to S. 41(4) of Legal Practitioners and Bar Councils Act, 1973---Court official
was directed to seal the property in question and locate respondents to hand over its possession to
them after proper verification---Application was dismissed in circumstances.

Khaleeq Ahmad for Petitioner.

Nemo for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 27th September, 2017.

JUDGMENT

NAZAR AKBAR, J.--- By this order, I intend to dispose of an application under Section
153, C.P.C. read with Section 151, C.P.C. [CMA No.6398/2017] filed by the advocate for the
petitioner on 10.06.2017, wherein the petitioner has prayed for recalling the order dated
27.3.2017, whereby the instant petition was dismissed as not pressed by the learned counsel for
the petitioner. However, it was placed in Court for orders on 03.7.2017.

2. This application is not supported by an affidavit of the petitioner, though in the second
line of the application it is stated that it is "prayed on behalf of the petitioner". The counsel for
the petitioner has filed his own affidavit in support of the application. Therefore, learned counsel
was directed to satisfy the Court that how this application is maintainable since it was not
supported with an affidavit of the petitioner. He contended that since this is an issue between him
(the counsel) and the Court that he has not made statement for not pressing this petition and the
Court, instead of passing an order on the argument advanced by him, has wrongly ordered that
this petition is dismissed as not pressed. However, when directed to call his client in Court, he
informed the Court that his client is already dead. It simply mean that the application was not
filed on "behalf of the petitioner" as falsely stated by him and supported by his own affidavit on
oath. Consequently, he was directed to produce death certificate and details of legal heirs of
deceased Mansoor Hussain, who had filed the instant petition against the dismissal of FRA
No.747/2001. On 12.7.2017 the learned counsel without realizing his own past conduct and legal
position, filed the following documents:-

i. Death certificate of petitioner Mansoor Hussain issued by National Institute of

Cardiovascular Diseases (NICD) showing 24.11.2012 the date of his death.

ii. Photocopy of page from register of Paposhnagar Graveyard.

 iii. Paper book of CPLA filed by him.

iv. He has also filed family tree registration certificate of deceased Mehmood
Hussain who died in 2006.

He informed the Court that Mansoor Hussain's death certificate from KMC is not available with
his widow and he introduced four strangers claiming to be sons of deceased Zahid Hussain and
one of them has filed a formal affidavit stating therein that Mr. Khaleeq Ahmed, advocate had
informed him (Mr. Raheel, though he was never client of (Mr. Khaleeq Ahmed Advocate)
sometime in April, 2017 through his cousin Mr. Mohsin Mobin, advocate that this petition has
been dismissed.

3. I have heard learned counsel for the petitioner. In his arguments he has only reiterated the
contents of his application. He has neither referred to any provision of Law nor relied on any
case-law in support of his contentions and the application. In his personal affidavit in support of
application, learned counsel has stated in para-5 that he has argued three constitution petitions on
27.3.2017 and the order of dismissal was announced in open Court and as such neither the
deponent (Mr. Khaleeq Ahmed, advocate) made statement nor any order for dismissal being not
pressed was announced on 27.3.2017. In para-6 of his affidavit, he has stated that on 11.4.2017
he obtained certified copy of the order and in all petitions same order was issued, therefore, a
civil petition was filed before the Hon'ble Supreme Court of Pakistan.

4. Mr. Khaleeq Ahmed, Advocate has further stated in para-7 of his affidavit that he was
shocked when the Judicial Assistant of Hon'ble Supreme Court of Pakistan returned the paper
books with the objection dated 30.5.2017 that "no order of instant petition was filed" and
therefore, on 01.6.2017 the learned counsel again obtained certified copy of the order in the
instant petition and he was again shocked when he read over the orders wherein it was mentioned
that he did not press instant petition. He has also stated in his affidavit that it was either due to
some error or otherwise he has not made this statement for not pressing this petition and "due to
omission my reputation as on stake". Learned counsel in para-9 has declared that there is no need
of filing affidavit of petitioner and his legal heirs. The counsel himself has become litigant as
neither his client was alive nor his legal heirs had ever engaged him to prosecute C.P No.S-
639/2010 since 2012 when the petitioner had died. Therefore, in para-9, learned counsel again
made a deceptive statement on oath as the petitioner and legal heirs were before the Court and
capable to file affidavit but they are not required under the Law to file the same.

5. The Issues raised by Mr. Khaleeq Ahmed, advocate in the application and his personal
affidavit which need to be addressed by the Court can be summarized in the following three
propositions:-

1. That his reputation is at stake on account of error of the Court in dismissing the
petition as "not pressed", though according to the learned counsel he had argued
this petition, too.

2. That on 27.3.2017 he had argued the case in C.P Nos.S-C.Ps. Nos.453/2010 and
454/2010 and same order was required to be passed by the Court, which was
 passed in C.Ps. Nos.453/2010 and 454/2010 as it was so mentioned in previous
diaries of C.P. No.S-639/2010 that "same order as in C.P. No.453/2010".

3. That it was mistake of copying branch which issued him certified copy showing
first title page of C.P. No.639/2010 (instant petition) and supplied copy of order
passed in C.Ps. Nos.453 and 454/2010.

6. My findings on the above propositions are as follows:-

7. Learned counsel neither in his affidavit, nor at the bar has thrown any light on his (Mr.
Khaleeq Ahmed's) reputation. Nor this Court, in the absence of any credential of his reputation
on record, is in a position to comment on the class/quality of his reputation in general and as a
lawyer in particular to assess his stake as a result of the order dated 27.3.2017. However, it is a
matter of common knowledge that a lawyer earns a reputation worthy of some value by
demonstrating his sincerity and honest conduct both towards his client and towards the Court in
administration of justice. An upright lawyer is supposed to be an officer of the Court fairly
assisting the Court in dispensing justice and not slave of his client nor greedy to serve him
against the Law and facts. He has to contest cases on merit and merit alone. He should adhere to
minimum standards of duties of a lawyer explained in Chapter XII (Canon of Professional
Conduct and Etiquette of Advocates) of the Legal Practitioners and Bar Councils Rules, 1976
framed by the Pakistan Bar Council in exercise of powers conferred by Section 55 of the Legal
Practitioners and Bar Councils Act, 1973.

8. In view of the above facts and the augments advanced as well as written synopsis filed by
the learned counsel, I will examine the record and proceedings of the present case to first
appreciate what is the possible stake of Mr. Khaleeq Ahmed, Advocate in terms of his reputation
which he has earned/build/established in the eyes of his client by his sheer hard work,
performance and unprecedented conduct in discharge of his duties toward the Court in the case
in hand. In this context following facts from the record are worthy of appreciation for an answer
to all the three propositions:-

(a) On 29.5.2010 when the instant constitution petition was filed by Mr. Khaleeq
Ahmed, Advocate on behalf of one Mansoor Hussain, following office objection was
raised by writ branch of High Court.

"The petitioner has to satisfy the Court about his locus standi." Mr. Khaleeq Ahmed,
Advocate rightly replied the objection that "Mansoor Hussain (is) statutory tenant being
surviving legal heir hence signed petition and its affidavit". In fact in his reply he has
demonstrated his knowledge of Rent Laws and referred to Section 2(i) of Sindh Rented
Premises Ordinance, 1979 (SRPO, 1979) which is reproduced below:-

"Tenant" means any person who undertakes or is bound to pay rent as consideration for
the possession or occupation of any premises by him or by any other person on his behalf
and includes:---

(i) any person who continues to be in possession or occupation of the premises after
the termination of his tenancy;
 (ii) heirs of tenant in possession or occupation of the premises after the death of the
tenant; (Emphasise supplied).

(b) In view of the above, one can safely conclude that Mr. Khaleeq Ahmed,
Advocate knew the provision of Section 2(i) SRPO, 1979 when he filed the instant
petition and on 17.12.2012 he confirmed that he is fully aware of the provisions of Order
III Rule 4 of C.P.C., which are as follows:-

1. Appointment of pleader.--- (1) No pleader shall act for any person in any Court,
unless he has been appointed for the purpose by such person by a document in
writing signed by such person or by his recognized agent by some other person
duly authorized by or under a power-or-attorney to make such appointment.

2. Every such appointment shall be filed in Court and shall be deemed to be in force
until determined with the leave of the Court by a writing signed by the client of
the pleader as the case may be, and filed in Court, or until the client or the pleader
dies, or until all proceedings in the suit are ended so far as regards the client.

In obedience to the above provision of Law when Mr. Khaleeq Ahmed, Advocate came to know
that on 24.11.2012 his client has died, he realized that with the death of the petitioner, Mansoor
Hussain, he ceased to be his lawyer. Therefore, on 17.12.2012 he very rightly requested the
Court for time to file proper application. Court order dated 17.12.2012 is reproduced below:-

1. For Katcha Peshi.

2. For hearing of CMA No.2926/2010

17th December, 2012

Mr. Khaleeq Ahmed, advocate for the petitioner.

-------

Counsel for the Petitioner requests for grant of sometime as according to him, the
Petitioner has since expired, therefore, he needs some time to file proper application in
this regard. Interim order passed earlier to continue till the next date of hearing.

However, till date he has not filed such an application and without filing power on behalf of "any
person" in the instant petition Mr. Khaleeq Ahmed, Advocate continued to represent a dead
person by himself or through his associate for seeking adjournment.

(c) Not only this, on 28.1.2013 in presence of Mr. Khaleeq Ahmed, Advocate this
Court has been pleased to order to repeat notice to respondents Nos.2 to 14, but he
deliberately failed to get the notice issued as he could not pay nominal process
fee. Again on 24.7.2013, in his presence the Court has ordered to "issue notice
through courier service as well as by pasting". But the said order was also not
complied as the subsequent orders dated 13.8.2013 and 10.11.2014 reflect office
note that "notice could not be issued, cost not paid".
 (d) Mr. Khaleeq Ahmed, Advocate even earlier on 22.6.2010 himself has assured the
Court that he will ensure service of notices on the respondents and his
undertaking was noted by the Court in the Order dated 22.6.2010 reproduced
below:-

1. For Katcha Peshi

2. For hearing of CMA No.2926/2010

22.6.2010

Mr. Khaleeq Ahmed for petitioner.

--------

The learned counsel submits that he will ensure the service of notice by asking his
associate or a representative of the petitioner to accompany the bailiff.

The office is directed to repeat the notice for 29.6.2010.

However, as the later diaries of Court confirm, learned counsel instead of sending his associate
or representative even stopped paying nominal process fee so notice to the respondents could not
be issued.

(e) Then on 29.8.2013 Mr. Khaleeq Ahmed, advocate superseded another Advocate in C.P
Nos.S-453 and 454 of 2010 and after six months on 23.4.2014, while appearing in C.Ps. Nos.S-
453 and 454 of 2010 and C.P No.639/2010 was not even listed before the Court, Mr. Khaleeq
Ahmed, advocate misguided the Court and obtained an order about the instant petition that it
may be tagged along with the said petitions. The order dated 23.4.2014 from C.P No.453/2010 is
reproduced below:--

1. For Katcha Peshi

2. For hearing of CMA No.2094/ 2010

23.4.2014

Mr. Khaleeq Ahmed, advocate for the petitioner.

Mr. Arif Khan, Advocate for respondent.

-------

Learned counsel for the petitioner submits that C.P No.639/2010 pending before this
Court in which same subject property is involved.

Office is directed to tag C.P No.639/ 2010 along with this petition.

Interim order, if any, passed earlier to continue till the next date of hearing. Adjourned.
 (f) Mr. Khaleeq Ahmed, Advocate on 23.4.2014 while appearing in C.P No.S-
453/2010, misguided the Court since on the said date he was not representing "anyone" in
C.P No.S-639/2010 as his client (Mansoor Hussain) had already died. Till today neither
Mr. Khaleeq Ahmed, Advocate has filed power on behalf of legal heirs of deceased
Mansoor Hussain nor anyone has approached him to claim that as tenant he is "bound to
pay rent" and he is "heir of tenant in possession" after the death of tenant Mansoor
Hussain (Section 2(i) of SRPO, 1979 quoted in para-8 above). Moreover, since
28.01.2013 despite Court's repeated orders notices to the respondents by courier as well
as by pasting have not been issued as cost has not been paid by him.

(g) Mr. Khaleeq Ahmed, Advocate on 23.4.2014 made a mis-statement before the
Court in Rent Petitions Nos.453 and 454 of 2010 that in the instant petition "same subject
property is involved", though it was not legally and practically possible. In all the three
petitions, three different "tenements" were involved. In all the three petitions even rate of
rents was different and in all the three petitions tenants and landlords were also different.
And after the death of his client in the instant petition the facts and circumstances of the
instant petition were altogether changed as his client had stopped depositing rent in Court
from February, 2012 almost 9 months before he died in November, 2012 and nobody has
tendered rent after his death. And yet Mr. Khaleeq Ahmed, Advocate claims that he had
also argued the instant petition. Or otherwise same orders should have been passed in the
instant petition which were passed in the contested petitions, merely because last few
diaries of Court on adjournment were that "same order as order in C.P No.453/ 2010".

9. The facts in paras 8(a) to 8(g) above floating on the Court record highlight the honest and
dedicated performance of Mr. Khaleeq Ahmed, Advocate both toward the Court and towards his
client Mansoor Hussain right from 29.5.2010 when he filed the instant petition on behalf of
Mansoor Hussain till his death on 24.11.2012. And thereafter Mr. Khaleeq Ahmed, Advocate is
performing his duty as pleader towards an unknown person as he has not yet been appointed
pleader by "anyone" in writing to act as pleader in Court in terms of Order III, Rule 4, C.P.C.
quoted in para-8(b) above). Therefore, on 27.3.2017 he had no options except "not to press" the
instant petition which otherwise should have been dismissed for non-prosecution in 2013 on
account of non-payment of cost when the petition was repeatedly listed with office note that
"Notices could not be issued process fee not paid" on 24.9.2013, 13.8.2014 and 10.11.2014.

10. Now I will examine extraordinary hard work and dedication of Mr. Khaleeq Ahmed,
Advocate as respected lawyer from 27.3.2017 onwards since his enviable reputation is on stake
because of the said orders. In this context following acts and deeds from the record would throw
some light on his efforts to protect his hard earned reputation at the bar.

(i) Reply of Mr. Khaleeq Ahmed, Advocate dated 31.5.2010 to the office objection
about locus-standi of petitioner Mansoor Hussain confirms in unequivocal terms that Mr.
Khaleeq Ahmed, Advocate knew that except Mansoor Hussain nobody else was "tenant"
of the tenement in question in accordance with Section 2(i) of SRPO, 1979. Zahid
Hussain had died on 27.2.2006 and Mr. Khaleeq Ahmed, Advocate himself has placed
his death certificate on record and that is why his legal heirs namely Mr. Raheel and
others have never approached him to be impleaded in the instant petition. Zahid Hussain's
legal heirs have not filed any application to be impleaded in the FRA No.747/2001 nor in
instant petition even after the death of Mansoor Hussain who was a "statutory tenant",
therefore, they were not aggrieved by the orders dated 27.3.2017 passed in Rent
proceedings after 12 years of death of their father. But for this reason despite his own
request to the Court as incorporated in Order dated 17.12.2012 quoted in para 8(b) above,
Mr. Khaleeq Ahmed, Advocate has not filed power in the instant petition on behalf of
Mr. Raheel and others. Nor he has moved any application to implead them in the instant
case till today when I am writing this order. However, Mr. Khaleeq Ahmed, Advocate
has the courage to file Civil Petition for Leave to Appeal to the Hon'ble Supreme Court
through these strangers namely Mr. Raheel and others, who never claimed to be statutory
tenant nor tendered rent in M.R.C. No.1133/2000 in the Court of IX-Rent Controller
South, Karachi in which deceased Mansoor Hussain has deposited rent till February
2012.

(ii) Mr. Khaleeq Ahmed, Advocate on 11.4.2017 received certified copies of orders
in all the three petitions. Admittedly he was fully aware of death of his client Mansoor
Hussain since 17.12.2012 who alone has filed C.P. No.S-639/2010. His other two clients
on whose petitions (C.Ps. Nos.S-453 and 454 of 2010) detailed common judgment was
passed on 27.3.2017 had instantly taken away their files and certified copies of judgments
from Mr. Khaleeq Ahmed, Advocate and engaged another Senior Counsel to file Civil
Appeals before the Hon'ble Supreme Court.

(iii) In view of the above fact Mr. Khaleeq Ahmed, Advocate was left with only one
certified copy of the order in Constitution petition No.639/2010 in his hands but he had
no client to approach Hon'ble Supreme Court. Therefore, Mr. Khaleeq Ahmed, Advocate
after five years of death of his client tried to fetch legal heirs of deceased Mansoor
Hussain through his friend Mohsin Mobin, Advocate. His friend introduced him to one
Mr. Raheel and after persuading him, he designed his strategy to first innocently
approach the Hon'ble Supreme Court. He had knowingly filed an order as impugned
order in CP No.S-639/ 2010 by replacing title page on the certified copy of orders in
which neither CP No.S-639/2010 was mentioned anywhere nor the basic facts of the case
of his client such as rate of rent, defence of his client that rent for alleged defaulted period
was deposited in M.R.C. No.1133/2000 were mentioned.

(iv) The timing of filing of petition for leave to appeal in Hon'ble Supreme Court
reveals his modus operandi. His new clients Mr. Raheel and others have signed
vakalatnama of AOR in April, 2017 but Mr. A.S.K Ghori, Advocate on Record filed/
presented CPLA on 29.5.2017 whereas in the other two constitution petitions first CPLA
No.287-K was filed on 02.5.2017 and second CPLA No.293-K of 2017 was filed on
06.5.2017 by another counsel Mr. Shahenshah Hussain, ASC through Mr. A. Aziz Khan,
Advocate on Record. Mr. Khaleeq Ahmed, Advocate presented his petition on 29.5.2017
with a view to get it tagged with the other two CPLAs in the same fashion in which he
got the instant petition tagged with the two other petitions on 23.4.2014 in the High
Court. (Order of tagging of CPs is quoted in para-8(e) above). But he was caught on the
first step. His Paper Book of CPLA in C.P No.639/2010 was instantly returned to his
AOR on 30.5.2017 by the Hon'ble Supreme Court office with the following memo:-
I am directed to inform you that the subject petition filed by you is suffering from the
following deficiency(s).

1. The impugned order passed on C.P No.S-639/2010 has not been filed with the
instant petition.

You are, therefore, required to do the needful, hence, the original file along with three
Paper Books is retuned herewith to you for removing the aforesaid deficiency(s) and
thereafter the same may be re-filed within seven days from the date of receipt of this
memo, failing which the subsequent/fresh date of submission will be treated its filing
date.

(v) Mr. Khaleeq Ahmed, Advocate from his own showing has obtained certified
copy on 11.4.2017 and he had only one certified copy of order in C.P. No.S-639/2010
with him by the time he filed an appeal on 29.5.2017 before the Hon'ble Supreme Court.
Therefore, it cannot be believed that he and his AOR had not read anything in the body of
certified copy of the order beyond the title page and he had innocently filed the petition
for leave to appeal before Hon'ble Supreme Court mistakenly with the incorrect/ wrong
certified copy of order supplied to him by the copying branch. He must have thoroughly
read the contents of the order supplied to him on 11.4.2017 by the copying branch. How
is it possible that he failed to appreciate on reading of the order impugned that it did not
contain findings on C.P No.S-639/2010. Mr. Khaleeq Ahmed, Advocate, Supreme Court
and his Advocate on Record had the certified copy of the order with them for 48 days
from 11.4.2017 to 29.5.2017 while preparing appeal and what they could not find in the
body of the order impugned was instantly noticed by judicial assistance within no time
and he instantly issued memo. dated 30.5.2017 that the impugned judgment passed in C.P
No.S-639/2010 has not been filed with the CPLA. In view of the memo of Hon'ble
Supreme Court, the frivolous contention of learned counsel that on the three applications
for certified copies same orders were supplied to him is a childish excuse to shift the
responsibility on Court staff when caught on the doorstep of the Hon'ble Supreme Court.

(vi) Then to further add insult to the injury he filed the instant application on his own
without permission of and impleading legal heirs of his deceased client Mansoor Hussain
or on behalf of "anyone" interested in claiming to be the "tenant" in terms of section 2(i)
of SRPO, 1979. This is patently an illegal act on his part. In the application in hand he
has made two insinuating allegations. One against the copying branch of Court and the
other against the Court itself that he had argued all the three petitions and the Court has
erroneously dismissed it as "not pressed". He wants the Court to "recall order" under
section 153, C.P.C. as if the order dated 27.3.2017 was "error in any proceeding in a
suit". His demand is that same order should have been passed in the instant petition
which was passed on the two other petitions. I quote relevant part of para-3 of his
affidavit "and since 19.12.2014 the order in C.P No.453/2010 considered same order in
the instant petition as my instant always same in all three petition." In fact Mr. Khaleeq
Ahmed, Advocate wants to capitalize on orders dated 23.4.2014 which he has
fraudulently obtained with ulterior motive by mis-statement/mis-representation during
hearing of C.P No.S-453/ 2010. His wilful misrepresentation and ulterior motive can
 easily be gathered from the facts incorporated in paras-8(d) to 8(f) above and further is
unfolded in the following part of this order.

(vii) On 7.7.2017 during the hearing of instant application Mr. Khaleeq Ahmed,
Advocate was directed to file affidavit of legal heir of his deceased client (Mr. Mansoor
Hussain) who alone had filed the instant petition and who had died on 24.11.2012. But
instead of legal heir of Mansoor Hussain, Mr. Khaleeq Ahmed, Advocate had filed
affidavit of one Raheel who was neither legal heir of Mansoor Hussain nor the said Mr.
Raheel has deposited rent in M.R.C. No.1133/2000 in the Court of IX-Rent Controller,
South, Karachi where the said deceased Mansoor Hussain has been depositing rent till
8.2.2012. On an enquiry from the Court of Rent Controller through District and Sessions
Judge, South Karachi, it has been transpired that since February, 2012 nobody has
deposited rent in MRC No.1133/2000 though the tenant Mansoor Hussain, (the
petitioner) had died in November, 2012. The learned Rent Controller has sent copy of
ledger No.309/2000 under his signature and seal dated 15.7.2017 showing non-deposit of
Rent in Court since February 2012. Mr. Khaleeq Ahmed, Advocate has taken said Mr.
Raheel to the Hon'ble Supreme Court knowing well that said Mr. Raheel has never
claimed to be in possession and he has never paid rent and it can easily be gathered from
the affidavit of Mr. Raheel.

(viii) The perusal of affidavit of Mr. Raheel son of Zahid Hussain filed by Mr. Khaleeq
Ahmed, Advocate at his own with a statement on 12.7.2017 contains startling disclosures
and Paras.2, 3, and 8 of the affidavit are worthy of appreciation to understand Mr.
Khaleeq Ahmed, Advocate's character as a lawyer. These paras are reproduced below:-

2. That the deceased Mansoor Hussain pursuing the rent case in respect of rented
premises situated Plot No.LR/ 24- P, Badshahi Road Off Nishtar Road, Karachi and after
demised of my above named uncle I was unaware regarding the case.

3. That in the month of April, 2017 Mr. Khaleeq Ahmed Advocate informed me
through my cousin Mohsin Mobin Advocate that the case was dismissed, therefore, he
(Mr. Khaleeq Ahmed Advocate) intend to approach Honourable Supreme Court,
therefore, called my uncle Mansoor Hussain, after knowledge of the same I visited at the
office of Mr. Khaleeq who asked for death certificate of my uncle Mansoor Hussain
which is not available with me and my aunti Shamim Perveen.

8. That Mr. Khaleeq informed us that according to him once he did not made any
statement for not pressing the above petition, therefore, he could not asked us for filing
the affidavit or signatures on the fresh Vakalatnama.

The contents of above affidavit of Mr. Raheel highlight the unprecedented conduct of Mr.
Khaleeq Ahmed, Advocate which on the face of it violates code of conduct of advocates as
prescribed in the Legal Practitioners and Bar Councils Act, 1973. One can easily notice from the
contents of the affidavit that:-
 (a) It was Mr. Khaleeq Ahmed, Advocate who has approached Mr. Raheel in April,
2017 through his friend Mohsin Mobin, Advocate, a cousin of Mr. Raheel to file
an appeal in Hon'ble Supreme Court.

(b) Mr. Khaleeq Ahmed, Advocate called uncle of Mr. Raheel in April, 2017 though
in December, 2012 he has informed the Court that his client and uncle of Mr.
Raheel has expired. (Order of 17.12.2012 is reproduced in para-8(b) above).

(c) He got an affidavit sworn by Mr. Raheel on 11.7.2017 and placed in the file of
the instant petition without any legal justification to place it in Court file and
without any application on behalf of the deponent to be impleaded as party.

(d) Mr. Khaleeq Ahmed, Advocate in view of statement of Mr. Raheel in para-8 of
the affidavit on oath should not have obtained any signature on fresh vakalatnama
for the instant petition, however, he managed a vakalatnama from Mr. Raheel and
others which is dated 12.7.2017 and surreptitiously filed it in the office.

(e) Mr. Raheel has never claimed to be the statutory tenant nor he was aware of the
rent proceedings. He has never tendered rent in M.R.C. No.1133/2000 in the
Court of IX-Rent Controller South, Karachi or to anyone.

(f) Mr. Raheel in his affidavit has not claimed that he is in possession of tenement.
In fact he is resident of Flat No.601, Doli Khata, Soldier Bazar, Karachi and
therefore, even otherwise he cannot claim to be tenant of the premises at Nashter
Road on the death of tenant in the said premises Section 2(i) SRPO, 1979 is
already reproduced in para-8(a) above.

(g) On top of all this, Mr. Khaleeq Ahmed, Advocate, has approached the Hon'ble
Supreme Court through Mr. Raheel and others who were never a party before this
Court during the pendency of Rent Petition and even afterwards. Nor said Mr.
Raheel and others have challenged the dismissal of petition by an order as "not
pressed" by means of review or otherwise. Rather they have practically refused to
be impleaded in the instant petition even on coming to know that the instant
petition was dismissed as "not pressed" for the simple reason that they have never
contacted Mr. Khaleeq Ahmed, Advocate to contest the instant petition on merit
for their benefit. (Para-8 of affidavit of Mr. Raheel).

11. The facts on record as discussed in the preceding paragraphs clearly indicate that Mr.
Khaleeq Ahmed, Advocate is capable of making false statement on oath. He has repeatedly
levelled insinuating allegation on oath against the Court that the Court has not passed order in
C.P No.S-639/2010 which too was argued by him. His repeated false assertion on oath against
the Court that he had advanced arguments even on the instant petition, in view of above facts,
amounts to contempt of Court in the face of the Court. But in 2017 giving a notice of contempt
of Court to a lawyer would be a futile exercise. The law of Contempt of Court is not applicable
on lawyers. There are several instances of contempt of court cases against the lawyers but none
has caused even slightest deterrence to control the frequent misconduct of lawyers in Courts. In
many cases of contempt of court after contest they simply tender an apology and the matter ends.
In Karachi we have lawyers who have repeatedly faced contempt of Court proceedings. Their
cases are even reported in Law Journals but as they were let of on their undertakings and
assurance by leaders of Bar Associations that they will not repeat such conduct, they again do
not mind committing contempt of Court in the face of the Court. Even the practice of tendering
apology by lawyers in contempt of court case is now obsolete. Now-a-days, lawyers after
committing contempt of court do not even accept service of notices of contempt proceedings
against them. An example of latest trend is a case of contempt by a Lawyer in Multan Bench of
Lahore High Court. He has even refused to appear before the full bench seized of contempt
proceedings and even non-bailable warrants were frustrated. Nevertheless, since in my humble
view Mr. Khaleeq Ahmed, Advocate is also guilty of professional misconduct, therefore, instead
of any contempt proceedings I would prefer to send the case of Mr. Khaleeq Ahmed, Advocate
to the Pakistan Bar Council for initiating disciplinary proceedings of professional misconduct
against him. I am also conscious of the fact that despite unprecedented increase in the number of
incidents of professional misconduct by lawyers, the Bar Councils' disciplinary committees
hardly take action on complaints against such lawyers. Be that as it may be,

12. The logical conclusion of above discussion is that the instant application (CMA
No.6398/2017) filed by Mr. Khaleeq Ahmed, Advocate on his own without any authority from
"anyone" to file such an application, is dismissed in the following terms:-

(i) Pakistan Bar Council is directed to initiate disciplinary proceedings against Mr.
Khaleeq Ahmed, Advocate for professional misconduct by treating contents of
this order as complainant under subsection (2) of Section 41 of Legal Practitioners
and Bar Councils Act, 1973 and refer the same to the Tribunal for decision in
terms of Proviso to Subsection (4) of Section 41 of the Act to the Hon'ble
Tribunal of Bar Council established under Section 42 of the Act. Report of
referring the case to the Tribunal may be sent to this Court through MIT of High
Court of Sindh at Karachi for perusal in Chamber.

(ii) That since the respondents have been kept out of proceedings by design as is
evident from para-8(d), 8(e) above, the Nazir of this Court is directed to seal the
property within 48 hours bearing a portion of the premises at Sobash Nagar,
Topandas, Ali Merchant building on Plot No.LR-9/24-P, IV-C-141/142, Badshahi
Road, Opp: Nashtar Road, Karachi in which deceased Mansoor Hussain
(petitioner) was tenant and running Glass Work. Thereafter locate the respondents
and handover its possession to them after proper verification of the respondents.

13. In view of the above order, (C.M.A. No.6541/2017) has become infructuous, therefore,
the same is also dismissed.
14. Copy of this order may also be sent to the Karachi Registry of Hon'ble Supreme Court of
Pakistan with reference to its memo. dated 30.5.2017 issued by Mr. Faisal Noor, Judicial
Assistant and addressed to Mr. A.S.K Ghori, Advocate on Record in CPLA No.NIL/2017 (Abrar
Hussain v. VII ADJ South, Karachi and others).

MH/A-131/Sindh Order accordingly.

2017 C L C 1070

[Disciplinary Tribunal of the Sindh Bar Council]

Before Justice Salahuddin Panhwar, Chairman, Amanullah Yousufzai and Syed Haider
Imam Rizvi, Members

AKBAR ALI AND QURBAN and another----Complainants

Versus

NAEEM QURESHI and another----Respondents

P.M.C. No.46 of 1993, Reference No.12 of 1995, decided on 23rd April, 2016.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 41--- Misconduct--- Awarding of punishment--- Per-condition---Disciplinary Tribunal,

under S.41 of Legal Practitioners and Bar Councils Act, 1973, may award punishments of
reprimand, suspension, removal from practice or payment of compensation---Before awarding
punishment, Tribunal must firstly be satisfied that "professional or other misconduct" has been
committed.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 41---Misconduct---Necessary ingredient---Moral turpitude was a necessary element for

misconduct.

(c) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 41---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Misconduct---Onus to prove---

Principle---Burden of proving allegations of misconduct rests upon complainants who are
required to independently establish the same beyond reasonable doubt irrespective of defence (or
lack thereof) put up by accused.

(d) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 41--- Reference--- Misconduct--- Proof--- Complaint against advocate on allegation of

misconduct---Validity---Complainants' testimonies when compared against each other and
against their earlier complaints/applications led to the conclusion that they were not to be
regarded as witnesses of truth---Tribunal held that without any independent corroboration of
allegations in question, it was not safe to base an adverse finding against an advocate merely
upon the say-so of complainants particularly when their statements and testimonies were rife
with inconsistencies---Corroboration of independent witnesses was not always an essential pre-
requisite in such cases---Complainants were convicted criminals having substantial cause to
harbor a grievance against advocate who remained their lawyer in trial which ended in their
conviction---Complaint was dismissed in circumstances.

Muhammad Shafiq, Advocate PLD 1960 W.P. Lah. 720; Black's Law Dictionary (10th
Edition); Muhammad Saeed v. Election Petitions Tribunal, West Pakistan PLD 1957 SC 91;
Mohd. Yousuf v. S.M. Ayub PLD 1973 SC 160; Saeed Hassan v. Pyar Ali PLD 1976 SC 6;
Qutub Ahmed v. Faisal Ali Subzwari 2007 CLC 1682; Wella Aktineesellschaft v. Shamim
Akhtar 2015 SCMR 1274; Kamran Industries v. Collector Customs, Karachi PLD 1996 Kar. 68
and CIT v Kamran Steel Re-rolling Mills 1989 PTD 521 ref.

Date of hearing: 2nd April, 2016.

JUDGMENT

SYED HAIDER IMAM RIZVI, MEMBER.--- The instant matter was heard and
reserved on 2.4.2016 and was disposed off vide short order dated 23.4.2016. The following are
the reasons for the said order:

2. The background of the case is that the Complainants moved an application dated
4.12.1993 to the Hon'ble Chief Justice of the High Court of Sindh alleging misconduct on part of
the Respondent No.1. This application was forwarded to the Sindh Bar Council on 27.12.1993
upon the directions of the Hon'ble Chief Justice. A second application dated 25.10.1994 in this
regard was also moved by the Complainants during hearing of their Criminal Appeal
No.243/1993 alleging misconduct on part of the Respondents Nos.1 and 2 which was also
referred to the Bar Council by the learned Division Bench of the Sindh High Court vide order
dated 25.10.1994. Both applications related to the same transaction of events.

3. Vide order dated 12.11.1995 -- having considered both applications/complaints referred

to the Sindh Bar Council jointly -- the Disciplinary Committee was pleased to make a reference
to this Tribunal for trial in terms of section 41 of the Legal Practitioners and Bar Councils Act,
1973 ['the Act']. The order passed by the Disciplinary Committee was ex parte as neither
Respondent appeared to defend himself.

4. Before the Tribunal, both Complainants examined themselves on 27.7.2002 and

24.8.2002 respectively and were cross-examined by the Respondent No.2, Hatif Khudai Ansari.
The Respondent No.1, Naeem Qureshi, did not cross-examine the complainants despite being
afforded the opportunity. Thereafter, on 3.9.2005, the Respondent No.2 examined himself and
was cross-examined by the Complainant No.1, Ali Akbar. Certain questions were also put to him
by the tribunal itself. The Respondent No.1 did not lead any evidence.

5. On the same date, namely 3.9.2005, the matter was finally heard and reserved.
Unfortunately, no decision was announced and eventually on 20.4.2006 the matter was put up for
rehearing. The matter was again reserved for orders on 24.6.2006 but once again no decision was
announced and it was again listed for rehearing on 21.10.2006. Thereafter, the matter was again
heard and reserved on 4.11.2006 but it still could not be decided. On 21.7.2007, the Complainant
No.1 moved an application for reopening of his side and for calling three additional witnesses
but his application for leading further evidence was declined by the Tribunal. On 18.8.2007, the
matter was once again reserved for orders but - like on previous occasions -- no order was
announced. On 17.11.2007 the matter was adjourned to a date in office and then did not come up
for hearing until 2.4.2016. It appears that no sitting of the Tribunal took place during this entire
period which is unfortunate to say the least.

6. As a result, during pendency of the case, it appears that the Complainant No.1 as well as
the Respondent No.2 have passed away whereas the Complainant No.2 has not been appearing
since 24.8.2002 and seems to have lost interest in pursuing the case. Thus, on the final date of
hearing viz 2.4.2016, only the Respondent No.1 appeared and argued while proceedings against
the Respondent No.2 were discharged. Given the absence of the Complainants, we gave our
anxious consideration as to whether the matter (as against the Respondent No.1) should simply
be dismissed for non-prosecution. However, we are mindful of the fact that the absence of the
Complainants was caused, largely, by the long delay in the conclusion of the proceedings which
was not due to any fault of the Complainants. Moreover, we are of the view that disciplinary
proceedings in relation to the grave acts of misconduct on part of an advocate (especially in cases
where the Disciplinary Committee has considered the allegations weighty enough to be referred
to this Tribunal) assume a public character and are not governed by the ordinary rules of
adversarial civil proceedings between private parties. As such, they should not be dismissed in
non-prosecution purely as a matter of routine. We are fortified in this view by the Division
Bench judgment of West Pakistan High Court in the matter of Muhammad Shafiq, Advocate
(PLD 1960 W.P. Lahore 720). In our opinion, in cases where evidence has already been
recorded, it is open for the Tribunal to examine the record of the case itself and apply its mind to
the merits of the case. We have, accordingly, done so.

7. At the outset, we must reject the contention of the Respondent No.1 that these
proceedings are not maintainable as -- according to the Respondent No.1 -- the Disciplinary
Committee forwarded the complaint to the Tribunal without a proper hearing or a meeting. In
fact, the record shows that the Committee did issue notice to the Respondents and the
Respondent No.1 even entered appearance at one stage. However, no reply was filed by the
Respondents and they were not present when the Disciplinary Committee passed an ex-parte
order referring the complaint to the Tribunal. We do not understand, therefore, how the failure of
the Respondent No.1 to properly defend himself before the Committee renders the proceedings
before this Tribunal without jurisdiction.

8. Before assessing the evidentiary merits of the allegations against the Respondent, we
must firstly consider the applicable burden and standard of proof. As far as the former is
concerned, it is trite law that the burden of proving an act of misconduct justifying disciplinary
sanctions against an individual must rest upon the person making such allegations. Even
otherwise, the Qanun-e-Shahadat Order, 1984 is applicable to proceedings before the Tribunal
and Article 117 thereof is more than clear on this point.
9. As far as the applicable standard of proof is concerned under section 41 of the Act, the
Tribunal may award the punishments of reprimand, suspension, removal from practice or
payment of compensation, fine or penalty if it finds an advocate guilty of professional or other
misconduct. Thus before awarding punishment, the Tribunal must firstly be satisfied that
"professional or other misconduct" has been committed. Misconduct is defined in Black's Law
Dictionary (10th Edition) as "(1) a dereliction of duty; unlawful, dishonest or improper
behaviour esp. by someone in a position of authority or trust" and "(2) An attorney's dishonesty
or attempt to persuade a court or jury by using deceptive or reprehensible methods". In other
words, there is necessarily an element of moral turpitude involved in misconduct and reaching
such a finding about an advocate would naturally create a stigma around his reputation. It may
well disqualify him from holding other offices and employment. At the same time, the sanctions
that may be visited upon an advocate guilty of misconduct are of a drastic nature and include
removal from the practice of law altogether which would deny him the right to practice his
profession and earn his livelihood. Given the penal nature of the jurisdiction being exercised and
in light of the case law discussed below, we are of the view that allegations of misconduct must
be proved to a higher standard than merely the balance of probabilities required in civil cases.
Rather the appropriate standard of proof to be applied in such proceedings is the criminal
standard of proof i.e. beyond a reasonable doubt.

10. It is well-settled that the standard of proof legally required for establishing a particular
fact or allegation depends on the nature of proceedings and the consequences that follow from a
decision therein. In election petitions, for example, the superior courts have consistently taken
the view that in order to reach a finding of "corrupt and illegal practices" and to de-seat a
returned candidate as a result thereof; the election tribunal should apply the criminal standard of
proof and the returned candidate should be extended the benefit of all reasonable doubt. The
leading judgment in this regard is the case of Muhammad Saeed v. Election Petitions Tribunal,
West Pakistan (PLD 1957 SC 91) where Cornelius J. observed that "[t]he penalty for
commission of corrupt practices is of the most serious character. The loss of civic rights in the
shape of disqualification for voting or for standing as a candidate for election to a representative
status is in itself a grievous one. But the further penalty of the loss of representative status,
achieved by gaining the suffrages of the electorate which follows avoidance of an election is one
which, in a democratic State, must be placed among the most severe known to law.
Consequently, the law necessarily expects a very high degree of care that these penalties should
not be applied and that the expression at an election of the wishes of the electorate should not be
set at naught, except where the necessary conditions are found, in detail, to have been
established, after an enquiry conducted in accordance with strictly judicial process affording the
greatest assurance against the possibility of error." As a result, the Hon'ble Supreme Court held
that the petitioners bore the burden of proving the allegations against the respondents beyond
reasonable doubt. In the present case, although the element of negation of electoral will may be
absent, it is clear that the consequences that may be visited upon the advocate in case of a finding
of misconduct are of equally dire nature and shall deprive him of his fundamental rights to
practice a profession and earn a livelihood guaranteed under Articles 18 and 9 of the Constitution
of the Islamic Republic of Pakistan.

11. The reasoning of the Hon'ble Supreme Court in the aforementioned judgment was
subsequently followed in the cases of Mohd. Yousuf v. S.M. Ayub (PLD 1973 SC 160) and
Saeed Hassan v. Pyar Ali (PLD 1976 SC 6) and Qutub Ahmed v. Faisal Ali Subzwari (2007
CLC 1682). In the former case, Sajjad Ahmed J. elaborated further upon the principle by
observing "[i]t is well settled that the provisions of a penal statute, such as contained in the
clause 2 (h) of the Legal Framework Order, 1970, entitling forfeiture and deprivation of valuable
rights of progeny have to be very strictly construed and in the case of doubt the benefit must go
to the person against whom they are sought to be invoked. The rule is founded on the tenderness
of the law for the rights of individuals" [emphasis added]. In view of such principle, in the
Mohammad Yousuf case, the Hon'ble Supreme Court was disinclined to place much importance
upon an alleged admission of the counsel of the respondent before the tribunal. We see no reason
to place the individual rights to practice a profession and earn a livelihood on a lower footing
than the rights to franchise and property and thus are of the view that the same standard of proof
should be applicable to both types of cases.

12. Indeed, the superior courts have, by now, laid down the consistent principle that wherever
the law permits the imposition of penalties upon an individual, the standard of proof to be
followed is that prescribed in criminal law i.e. beyond reasonable doubt. Thus in the case of
Wella Aktineesellschaft v. Shamim Akhtar (2015 SCMR 1274) it was held that power to strike
off a registered trade mark from the register under section 37 of the Trade Marks Act, 1940 was
penal provision and hence the facts justifying imposition of such penalty must be proved beyond
reasonable doubt. Similarly, in the cases of Kamran Industries v. Collector Customs, Karachi
(PLD 1996 Kar. 68) and CIT v. Kamran Steel Re-rolling Mills (1989 PTD 521), it was held by
division benches of the Sindh High Court and the Lahore High Court respectively that penalty
proceedings under the Customs Act, 1969 and the Income Tax Ordinance, 1979 required that the
allegations against the assessee be proved by the department beyond all reasonable doubt and
independently of the strength of the assessee's own statement or explanation.

13. Keeping these legal principles in mind, we now approach the evidence recorded in this
case. Had this been a case for determination of civil liability, we might perhaps have concluded
that the Respondent No.1's failure to cross-examine the Complainants coupled with his failure to
lead any evidence in rebuttal was sufficient, on a balance of probabilities, to reach a finding
adverse to him. In the present proceedings, however, the burden of proving the allegations of
misconduct rested upon the Complainants who were required to independently establish the same
beyond reasonable doubt and irrespective of the defence (or lack thereof) put up by the
Respondent No.1.

14. In the first complaint/application preferred by the Complainants on 4.12.1993, the only
allegation made by the Complainants was against the Respondent No.1 and solely to the extent
that he had taken Rs.15,000/- from them to appeal against their conviction but had subsequently
disappeared leaving them to their fate. Not a single word about the Respondent No.2's
involvement was stated nor was there any mention of the Respondent No.1's role in the trial
proceedings.

15. However, in the second complaint/application dated 25.10.1994, the Complainants stated
that they had paid Rs.125,000/- to the Respondent No.1 as legal fees for the trial proceedings and
he continued to appear on their behalf for over a year but eventually informed them he would be
unable to devote further time to them as he had himself been implicated in certain criminal
proceedings. At this point, since the case was in its final stage, they engaged Mr. Waqar Shah as
their advocate for a fee of Rs.6,500/-. They further stated that the Respondent No.1 later
approached them again and offered to have them acquitted upon a further payment of
Rs.100,000/- and that two of their associates agreed to this offer and were acquitted while they
were unable to afford further payment and hence were convicted. The Complainants further
stated that, after conviction, they were again approached by the Respondent No.1 who offered to
represent them in appeal and they paid him firstly Rs.20,000/- and then another Rs.15,000/- to
pursue the appeal. However, after about 6-7 months when they complained about the lack of
progress, the Respondent No.1 asked for a further sum of Rs.35,000/- in order to have them
acquitted. At this point, they flatly refused and -- after further enquiry -- they discovered that
their appeal had not been filed by the Respondent No.1 but by the Respondent No.2 who was not
even known to them. As is apparent from the above, the contents of this second
complaint/application are vastly different and contradictory to those of the first
complaint/application. There seems to be a clear attempt to embellish and improve upon the
contents of the earlier complaint by adding details. Moreover, while the Complainants had
originally stated that they paid Rs.15,000/- to the Respondent No.1 for the appeal in the second
complaint they enhanced this figure to Rs.35,000/-.

16 The eventual testimony of the Complainant No.1 is materially different from both the
above complaints. In his testimony before this Tribunal, the Complainant No.1 claimed that the
Respondent No.1 had demanded legal fees of Rs.155,000/- before the trial court of which
Rs.125,000/- was paid to him. However, at the final stage of proceedings before the trial court
the Respondent No.1 stopped appearing as a result of which they engaged Mr. Waqar Shah and
paid him Rs.6,500/- as legal fees. After their conviction, the Respondent No.1 again approached
them and offered to have them acquitted in appeal if they paid his balance fees of Rs.25,000/-.
As they did not have the money, he refused to appear and, instead, informed them that he had
asked the Respondent No.2 to file their appeal. However, the latter stopped appearing after 3 to 4
dates due to which the Complainants were forced to first engage Mr. Nooruddin Sarki to appear
in the appeal and thereafter Mr. Salahuddin Gandapur.

17. A few important points are to be noted about this testimony. Firstly, it is materially
inconsistent with the complaints of 4.12.1993 and 25.10.1994. In this testimony (as opposed to
both earlier complaints/ applications), the Complainant No.1 clearly states that he paid nothing to
the Respondent No.1 for the appeal. Moreover, he admits that they were informed by the
Respondent No.1 that the Respondent No.2 would be filing the appeal on their behalf and he
further admits that the latter appeared in the appeal on three or four dates of hearing and then
stopped appearing as due to non-payment of fees. The Complainant No.l's main grievance -- in
this testimony -- is that "[w]e had paid to The Respondent No.1 a sum of Rs.125,000/- but he did
not appear in the Court on all the dates as a result of which we were convicted". Taking this
testimony at face value, it does not seem that any case of misconduct is made out. As far as the
filing of appeal is concerned, the Complainant No.1 has admitted that no fees was paid to the
Respondent No.1 due to which he refused to take further proceedings and had instead duly
informed the Complainants that the Respondent No.2 would file an appeal for them. Far from
any misconduct, this seems to have benefited the Complainants inasmuch as they had an appeal
filed for them without having to pay any further amount in fees. As far as non-appearance in the
trial is concerned, the Complainants have themselves stated in their second complaint/application
that the Respondent No.1 continued to appear until the final stages of the case when he excused
himself due to preoccupation in the criminal proceedings filed against him personally. As a
result, they engaged Mr. Waqar Shah for a seemingly nominal sum of Rs.6,500/-. If the
Complainants had any real grievance against the Respondent No.1 for his non-appearance at the
final stages of the trial, it stands to reason that they would have complained against him at that
stage. The very fact that they tried to re-engage the Respondent No.1 for the appeal tends to
suggest that they were satisfied with his overall performance at the trial. Clearly, therefore, the
complaints seem to be an after-thought and a result of frustration at their continued incarceration.

18. It is also pertinent to note that the testimony of the Complaint No.2, Qurban Ali, is
materially inconsistent with both the complaints/ applications and with the testimony of the
Complainant No.1. He claims -- contrary to the Complainant No.1's assertion -- that the full
amount of Rs.155,000/- was paid to the Respondent No.1 at the trial stage. He further claims that
the Respondent No.1 demanded Rs.15,000/- for the appeal (as opposed to the Complainant
No.1's claim of Rs.25,000). However, he admits (in clear contradiction of the complaints dated
4.12.1993 and 25.10.1994) that the Respondent No.1 was not paid any such sum and further
admits that he was informed by the Respondent No.1 that the appeal was filed through the
Respondent No.2. Again, the Complainant No.2's primary grievance against the Respondent
No.1 appears to be his failure to have him acquitted from the trial court which can hardly be
termed as misconduct. As far as the allegation regarding the Respondent No.1's failure to appear
in the final hearing of the trial is concerned; the reason for the non-appearance has been
mentioned in the second complaint dated 25.10.1994 itself. Moreover once again, there is no
explanation as to why the Complainants did not prefer any complaint at that stage and as to why
they still sought to engage the Respondent No.1 in the appeal despite his alleged misconduct at
the trial stage.

19. As is evident from the above, the Complainants' testimonies when compared against each
other and against their earlier complaints/applications dated 4.12.1993 and 25.10.1994 clearly
lead to the conclusion that they are not to be regarded as witnesses of the truth. As such, without
any independent corroboration of the allegations in question, it would not be safe to base an
adverse finding against the Respondent No.1 merely upon the say-so of the Complainants
particularly when their statements and testimonies are rife with inconsistencies. No doubt,
corroboration of independent witnesses is not always an essential prerequisite in such cases but,
at the same time, we cannot ignore the fact that the Complainants were convicted criminals
having substantial cause to harbour a grievance against the Respondent No.1 inasmuch as he had
remained their lawyer in the trial below which ended in their conviction.

20. In view of the foregoing, we are of the considered opinion that the complaint and
proceedings against the Respondent No.1 are liable to be dismissed.

MH/A-30/Sindh Complaint dismissed.

P L D 2017 Supreme Court 231

Present Sh. Azmat Saeed, Umar Ata Bandial and Faisal Arab, JJ

MUHAMMAD SHOAIB SHAHEEN and others---Petitioners

Versus

PAKISTAN BAR COUNCIL and others---Respondents

Civil Petition No.3345 of 2016, decided on 16th November, 2016.

(On appeal against the judgment dated 13-10-2016 passed by the Islamabad High Court
Islamabad in Writ Petition No.3394 of 2016)

Per Faisal Arab, J; Sh. Azmat Saeed, J, agreeing; Umar Ata Bandial, J dissenting.

(a) Custom/usage ---

----No customary practice or usage could be sought to be enforced which was contrary to the
codified law---Past practice could never substitute codified law.

(b) Law --

----No law could be made inoperative through obsolescence as long as it was in the field.

(c) Pakistan Legal Practitioners and Bar Councils Rules, 1976 ---

----R. 100---Legal Practitioners and Bar Councils Act (XXXV of 1973), S.15---General Clauses
Act (X of 1897), S. 14---Reconstitution of Committees by the Pakistan Bar Council before
expiry of their tenure---Legality---[Per Faisal Arab, J: Rule 100 of the Pakistan Legal
Practitioners and Bar Councils Rules, 1976 ("Councils Rules") made the term of the Committees
co-terminus with the term of the Council or any other term fixed by the Pakistan Bar Council
("the Council") at the time of creating them---Said Rule did not mean that the Committees could
not be reconstituted and shall remain absolutely immune from Council's interference till their
whole term expired---Council could not be prevented from exercising its power to withdraw its
delegated authority from a set of Committee members and entrust it to another as and when
deemed appropriate]---[Per Sh. Azmat Saeed, J, agreeing]: Minimum tenure of the Committee
was fixed by the Council---Such power once exercised or not exercised was not exhaustive and
could be re-exercised again]---[Per Umar Ata Bandial, J; dissenting: Legal Practitioners and Bar
Councils Act, 1973 ("the Act") and the Councils Rules did not provide any provision for removal
from office of an elected Chairman or member of a Committee of the Council by any means
whatsoever---No impeachment, recall or vote of no confidence mechanism was available in the
Act or the Councils Rules for authorizing remedial action by the Council---Term of office of
Members of the Committees ran co-terminously with the term of the Council because
notwithstanding the Council's one time power to fix a shorter term of the Committees at the time
of constituting them, the Council did not do so, and thereby confirmed the full term of five years
for such Committees---Such accrued right of Chairmen and Members of the Committee could
not be defeated by a majority vote in the Council without a suitable amendment in the Councils
Rules to incorporate the right of the members of the Council to bring a motion of no confidence
or of impeachment---His Lordship issued certain directions in such regard] [Minority view]---
Petition was dismissed accordingly and leave was refused.
 Pakistan Bar Council ("the Council"), by exercising majority vote reconstituted all its
Committees, at a time when the tenure available to the Committees under Rule 100 of the
Pakistan Legal Practitioners and Bar Councils Rules, 1976 ("the Councils Rules") had not yet
expired. Council suspended Rule 100 before reconstituting the Committees. Petitioners
challenged the reconstitution of the Committees on the basis that no change in their composition
could be brought about during subsistence of their available term.

Per Faisal Arab, J: [Majority view]

Rule 100 of the Councils Rules could not be interpreted so as to tie the hands of the Council and
render it powerless that it could not reconstitute its Committees as and when deemed appropriate.
Mere fixation of term of an office did not necessarily mean that the possibility to prematurely
terminate such term stood ruled out, therefore it was not legally tenable to maintain that simply
because Rule 100 had made the term of the Committees co-terminus with the term of the Council
or any other term fixed by the Council at the time of creating them, the Committees could not be
reconstituted and shall remain absolutely immune from Council's interference till their whole
term expired. In order to make premature changes in the composition of Committees, the Bar
Council did not need to suspend the provisions of Rule 100 of the Councils Rules. Committee
was a body that exercised authority originally vested in the Council, which was delegated to the
Committees through the mandate of law or through a decision of the Council itself. Members of
the Committees simply held office in the Committees during the pleasure of the Council. In its
capacity as the principal, the Council had the inherent power to decide to reconstitute its
Committees in an appropriately convened meeting. In exercise of such power, the Council may
of its own choose to give reasons though it was not obliged by law to do so. No provision of the
Legal Practitioners and Bar Councils Act, 1973 or the Pakistan Legal Practitioners and Bar
Councils Rules, 1976 required that an opportunity of hearing was to be first given to a member
of the Committee which the Council intended to prematurely replace. Not even a notice period
was envisaged to be given to the member sought to be removed from the Committee before
induction of a new member in his place. Rule 100 of the Pakistan Legal Practitioners and Bar
Councils Rules, 1976 could not be used as a shield to prevent the Council from exercising its
power to withdraw its delegated authority from a set of Committee members and entrust it to
another.

[Per Sh. Azmat Saeed, J; agreeing with Faisal Arab, J] : [Majority view]

Life of the Committee was determined by Rule 100 of the Councils Rules, which empowered the
Council to fix the tenure of the Committee at the time of constituting the same. Minimum tenure
of the Committee was, thus, not fixed by the statute (i.e. Council Rules) but by the Council. Such
power once exercised or not exercised was not exhaustive and there was nothing to prevent the
Bar Council from re-exercising of such power in terms of the principle laid down in section 14 of
the General Clauses Act, 1897.

Per Umar Ata Bandial, J; dissenting: [Minority view]

Neither the Legal Practitioners and Bar Councils Act, 1973 ("the Act") nor the Councils Rules
made any provision for removal from office of an elected Chairman or member of a Committee
of the Council by any means whatsoever. Both the Act and the Councils Rules also did not
address the matter of cessation of membership of Committees. Hence no impeachment, recall or
vote of no confidence mechanism was available in the Act or the Councils Rules for authorizing
remedial action by the Council. In the present case, no difficulty, or inconsistency in the
application of the Act or the Councils Rules was noted by the Council to justify the suspension
of Rule 100 of the Councils Rules. No ground for dissatisfaction with the Chairmen and
members of all Committees was disclosed or discussed in the General Meeting of the Council
wherein all the Committees were reconstituted. In the facts of the present case Rule 100 of the
Councils Rules envisaged in mandatory words that the term of office of members of the
Committees shall run co-terminously with the term of the Council; this was because
notwithstanding its one time power to fix a shorter term of the Committees at the time of
constituting these, the Council did not do so, and thereby confirmed the full term of five years
for such Committees. Consequently, it was an accrued legal right of the Chairmen and members
of the Committees that the tenure of their offices equalled the full term of the Council. Such right
of elected office bearers could not be defeated by a majority vote in the Council without express
authority under the Councils Rules, i.e. a suitable amendment in the Councils Rules to
incorporate the right of the members of the Council to bring a motion of no confidence or of
impeachment as may be deemed appropriate against, inter alia, members and Chairmen of the
Committees. [Minority view]

Muhammad Nawaz Sharif v. Federation of Pakistan PLD 2009 SC 644 ref.

His Lordship directed that the Council must incorporate an appropriate mechanism within its
Rules setting out the conditions on which the terms of the Chairmen and members of the
Committees may be terminated by the members of the Council; that an amendment in the
Pakistan Legal Practitioners and Bar Councils Rules, 1976 was therefore necessary for carrying
out the scheme of the Act and for enforcing better democratic governance of the Council; that in
case the Council failed to frame the requisite amended Rule(s) within a period of six months,
then as a default measure, the presently elected members of the Committees and the Disciplinary
Tribunal of the Council shall be deemed to have a term of two years rather than five years.
[Minority view]

Per Umar Ata Bandial, J:

(d) Interpretation of statutes ---

----Generally, the power conferred on a competent authority to suspend or relax rules was
construed narrowly because it permitted deviation from the applicable law.

(e) Constitution of Pakistan ---

----Preamble---Democratic order---Fundamentals---'Rule of law' and 'rule by the chosen

representatives of the electorate' were the two fundamental pillars of a democratic order.

Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644 ref.

(f) Statutory functionary ---

----Accrued legal rights---Scope---Statutory functionaries did not have the authority to take away
accrued legal rights of affected persons.

Alsamrez Enterprise v. Federation of Pakistan 1986 SCMR 1917; Zaman Cement

Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312 and Collector of Central
Excise and Land Customs v. Azizuddin Industries Ltd. PLD 1970 SC 439 ref.

Hamid Khan, Advocate Supreme Court, Shoaib Shaheen, Advocate Supreme Court and
Ahmed Nawaz Ch, Advocate-on-Record (Absent) for Petitioners.

Ms. Asma Jehangir, Advocate Supreme Court, Syed Qalb-i-Hassan, Advocate Supreme
Court and Ch. Akhtar Ali, Advocate on Record for Respondent No.12.

Kamran Murtaza, Advocate Supreme Court for Respondent No.5.

Azam Nazir Tarar, Advocate Supreme Court for Respondent No.8.

Muhammad Ahsan Bhoon, Advocate Supreme Court for Respondent No.9.

Qousain Faisal, Advocate Supreme Court, Ghulam Mustafa Kandowal, Advocate

Supreme Court and Syed Rifaqat Hussain Shah, Advocate on Record for Respondent
No.20.

Nemo for other Respondents.

Abdul Rashid Awan, DAG for Attorney General.

Date of Hearing: 16.11.2016

JUDGMENT

FAISAL ARAB, J.--The petitioners and the respondents Nos.3 to 22 are all elected
members of the Pakistan Bar Council (Bar Council). The Bar Council, in its meeting held on
03.09.2016 by exercising majority vote reconstituted all its Committees that were constituted
earlier on 25.01.2016. This was done by first suspending Rule 100 of the Legal Practitioners and
Bar Councils Rules, 1976 in exercise of the power contained in Rule 185. At that time the tenure
ordinarily available to the Committees under Rule 100 had not yet expired. The petitioners
challenged the reconstitution of the Committees in Writ Petition No.3394/2016 before the
Islamabad High Court, which was decided vide judgment dated 13.10.2016. It was held that the
term of the Committees is terminable by exercising the majority vote of the Bar Council. It was
further held that as the Bar Council voted for the reconstitution of its Committees in a meeting in
which it was not an item on its agenda, let a fresh meeting for the said purpose be convened.
Aggrieved by such decision, the petitioners have preferred the present petition for grant of leave
to appeal.

2. The main ground taken before us by petitioners' counsel is that once the Bar Council
constitutes a Committee, it shall continue to function without being interrupted by Bar Council in
any manner until its entire term available under Rule 100 expires. In other words no change in
the composition of Committees' membership could be brought about during subsistence of the
term available to the Committees. The petitioners' counsel further submitted that Rule 185 was
wrongly invoked as it is meant for removing difficulties only and cannot be used to remove the
protection accorded to the tenure of the Committees under Rule 100. In the alternative, it was
also argued by the petitioners' Counsel that even if it is assumed that the Bar Council possesses
the power to reconstitute its Committees before their term expires, in the past this has been done
with the consensus of all members of the Bar Council whereas in the present case no such
consensus was reached and thus the past practice which also has the force of law was not
honoured by the Bar Council. The counsel for the respondents, on the other hand, argued that
nothing in the Legal Practitioners and Bar Councils Act, 1973 or the Rules bars the Bar Council
from reconstituting its Committees or remove the members from the Committees as the powers
which the Committees exercise under the law originally vest in the Bar Council.

3. It may be clarified at the very outset that the Chairman of the Disciplinary Committee as
well as Enrolment Committee are nominated by the Chief Justice of Pakistan from amongst
serving Judges of this Court. They being ex-officio members are not under the authority of the
Bar Council so they only cease to be members of the Committees when they cease to be judges
of this Court or the Chief Justice of Pakistan in their place nominate other judges as Chairmen or
the Committees which they chair complete their term. Except for these two ex-officio members,
the rest of the members of the Committees are chosen by the Bar Council from amongst its
members and the issue involved in this case relates to such chosen members only.

4. Now taking the issue of past practice first, the history on this issue shows that on four
occasions in the past, the Pakistan Bar Council reconstituted its Committees before expiry of
their term. This happened in 56th meeting of the Bar Council held on 12.02.1987, 177th meeting
held on 23.08.2008, 193rd meeting held on 25.5.2012 and 204th meeting held on 31.1.2013. In
the 56th meeting, all Committees were reconstituted with unanimous decision. In 177th meeting,
Committees were reconstituted by majority vote. Though objection under Rule 100 was taken in
this meeting but the same was overruled. In 193rd and 204th meetings, Committees were
reconstituted again by majority votes after suspending the operation of Rule 100 by invoking
Rule 185. It can be seen that only on one out of four occasions in the past, reconstitution was
done with the consensus of all members of the Bar Council. In the remaining three occasions,
decision was taken by majority vote. From this, a consistent past practice of reaching the
decision with consensus is not established. Had that been so, still the same cannot be given effect
to for the simple reason that the petitioners have themselves based their claim on the
interpretation of the Legal Practitioners and Bar Councils Rules 1976, which have the force of
law whereas the claim of establishing past practice based on consensus occurred only once and
that too when the Rules were already in operation. No customary practice or usage can be sought
to be enforced which is contrary to the codified law. Past practice can never substitute codified
law as no law can be made inoperative through obsolescence as long as it is in the field.
Therefore, unless a solution to an issue could not be found in the law itself, the plea of past
practice cannot succeed.

5. What triggered reconstitution of the Committees on 03.09.2016 is not an issue before this
Court to decide. The issue is, was it done in a way that is permissible in law? The resolution of
the controversy with regard to the tenure of the Committees verily lies in exploring the real intent
behind incorporating Rule 100 in the Legal Practitioners and Bar Councils Rules, 1976. Rule 100
reads "The term of every Committee shall be the same as that of the Council itself unless the Bar
Council when constituting the Committee provides otherwise." This Rule has two parts. The first
part reads "The term of every Committee shall be the same as that of the Council itself". What
this part conveys is that the Committees cannot outlive the life of the Bar Council that has
constituted them. The day the term of office of a Bar Council comes to an end the then existing
Committees stand decommissioned and all unfinished business of the Committees stand
terminated. All members of the Committees then shall be deemed to be released of their
authority and responsibility arising from or in connection with their assignment on the
Committees. The second part of the rule reads "unless the Bar Council when constituting the
Committee provides otherwise". This part is simply intended to convey that it is not necessary
that the term of the Committees to always remain co-extensive with the life of the Bar Council as
the Committees could also be constituted for a different term i.e. a term which is shorter than the
life of the Bar Council. Obviously under the second part of the Rule, no term can be fixed which
lasts beyond the life of the Bar Council as it would defeat the very object of the first part of the
Rule. So the second part of the Rule facilitates fixation of a term that is shorter than the term of
the Bar Council. Rule 100 thus only provides for the maximum term for which the committees
can last i.e. either equal to the life of the Bar Council or any period shorter than that. Thus the
only purpose of incorporating Rule 100 was to provide terminus ad quem upon expiry of which
the Committees automatically stand decommissioned. Nothing more is to be read into this Rule.
By fixing a terminus point for the Committees under Rule 100, does it mean that the Bar Council
cannot prematurely reconstitute its Committees as and when it deems appropriate? This is
precisely the question, which needs to be explored next.

6. Lets first examine what is the status of the Committee. All functions of the Pakistan Bar
Council are described in Section 13 of the Legal Practitioners and Bar Councils Act, 1973.
Section 15 of the Act read with Rule 86 of the Pakistan Legal Practitioners and Bar Councils
Rules, 1976 empowers the Bar Council to constitute Committees in order to entrust them the
tasks that fall within the province of the Bar Council. So the Committees are various bodies of
persons whose members are merely the delegates chosen by the Bar Council from amongst its
members to carry out certain assignments on its behalf. The Committees being instruments of the
Bar Council, any matter or proceedings pending before a Committee can be withdrawn by the
Bar Council and disposed of by itself. This is evident from Rules 86 and 86-A(iii). For ease of
comprehension this relationship is to be understood as being similar to that of a principal and
agent. The Bar Council being the principal body, its satisfaction with regard to the functioning of
its Committees has to be kept paramount while dealing with the issue in hand.

7. A situation may arise where the Bar Council realizes that a Committee is not functioning
the way it thought it would and likes to revisit its decision with regard to the composition of
Committee's membership. Additionally, as a Committee has no power of its own to punish its
members for disorderly conduct, its only recourse being to report the matter to the parent body
i.e. the Bar Council to take corrective measures. A genuine need therefore may arise to replace
all or some of the chosen members of a Committee on account of neglect of duty or violation of
Bar Council's mandate or for any other reason. To take such corrective measure, the only option
left with the Bar Council is to reconstitute the Committees even though their tenure had not
expired. It is not hard to imagine two distinct situations to legally co-exist, one fixing the
maximum tenure for an office as provided by Rule 100 and at the same time the other enabling
premature termination of such tenure. So existence of the first situation does not ipso facto
eliminate the existence of the second. The co-existence of these two distinct situations, therefore,
does not create any contradiction. To further this point, the principle laid down in Section 16 of
General Clauses Act can be referred with considerable advantage. It lays down the principle of
general law that where a power confers any office on a person then the authority also has the
power to remove him from that office even if his tenure has not expired. Thus Section 16
furnishes a general doctrine that 'a power to appoint includes the power to remove'. Sir John
Woodroffe in Chapter VI of the 6th Edition of his book 'Law relating to Receivers' had
elaborated the exercise of such power by stating "The power to terminate flows naturally and as
a necessary sequence from the power to create………It is a necessary adjunct of the power of
appointment and is exercised as an incident to, or consequence of, that power; the authority to
call such office into being necessarily implying the authority to terminate his function when their
exercise is no longer necessary, or to remove the incumbent for an abuse of those functions or for
other cause shown, …..". So mere fixation of term of an office does not necessarily mean that the
possibility to prematurely terminate such term stands ruled out. In case it is held that Bar Council
has no such power, the only other option left with the Bar Council would be to remain helpless,
do nothing and let the affairs of the Committee be, till the new Bar Council is elected. This could
not have been intended by the Legislature. The power to reconstitute its Committees exists and
always will in the hands of the Bar Council. Now the premature termination of any office can be
brought about either after fulfilling certain conditions that are prescribed by law or it can be done
with absolute authority. In case the law provides that certain conditions are to be first met then
the termination would become effective only after the requisite conditions are fulfilled. Where no
preconditions are attached by law for the exercise of such power, as in the case of a principal and
his agent (unless agency is coupled with interest), premature termination of the tenure of an
office can be brought about instantaneously. Hence, subject to fulfilling the conditions for
removal, if any prescribed by law, the power to prematurely terminate an office, such as that of
the Committee members, who exercise delegated powers, nevertheless exists in the hands of the
Bar Council that created it. It is therefore not legally tenable to maintain that simply because
Rule 100 has made the term of the Committees co-terminus with the term of the Bar Council or
any other term has been fixed by the Bar Council under Rule 100 at the time of creating them,
the same cannot be reconstituted and shall remain absolutely immune from Bar Council's
interference till their whole term expires.

8. When the Bar Council reconstituted its Committees in its meeting held on 03.09.2016 by
exercising majority votes, all that it did was that it withdrew its own delegated authority from
certain members of the Committee and entrusted it to others. No provision of the Act or the
Rules requires that an opportunity of hearing was to be first given to a member of the Committee
which the Bar Council intended to prematurely replace. Not even a notice period was envisaged
to be given to the member sought to be removed from the Committee before induction of a new
member in his place. The Committees of the Bar Council exercise delegated authority and the
power to delegate an authority includes power to withdraw such authority. In other words it can
be said 'What the Bar Council giveth, the Bar Council can taketh away.' A Committee, therefore,
can be discharged in the same manner, it was established. All that is required is a majority vote
(Rule 96). That is the only requirement which the Bar Council has to fulfill. It may be pointed
out that this power of the Bar Council to reconstitute its Committees is not meaningless. It is
intended not to make withdrawal of authority by a principal from its agent questionable in a
Court of law. So the security of tenure, insofar as membership in a Committee is concerned, is
out of the equation. Only the members in their capacity as members of the Bar Council enjoy
security of tenure who cannot be removed from the membership of the Bar Council unless they
stand disqualified in the circumstances narrated in Section 11C read with Section 11B of the
Legal Practitioners and Bar Council Act, 1973. As for the members of a Committee chosen by
the Bar Council to exercise delegated authority are concerned, there exists no legal basis for
them to claim that they possess a vested right for their continuance on the Committee against the
will of the parent body that created it and resist their premature removal from the membership of
the Committee in disregard of the majority decision. It can be said that the Committees live by
majority vote and die by majority vote. The Bar Council being the principal body, whose
satisfaction is to be kept paramount, simply requires majority vote to make changes in the
membership of its Committee, which power it exercised in its meeting held on 03.09.2016. In
order to make premature changes in the composition of Committees, the Bar Council does not
even need to suspend the provisions of Rule 100 by invoking Rule 185. If that was done in the
present case or on couple of occasions in the past, it could only be termed as something done out
of abandoned caution as the purpose of incorporating Rule 100 in the Legal Practitioners and Bar
Councils Rules, 1976, as already discussed in detail, is altogether different.

9. To sum up, Rule 100 of the Legal Practitioners and Bar Councils Rules, 1976, cannot be
interpreted so as to tie the hands of the Bar Council and render it so powerless that it cannot
reconstitute its Committees as and when deemed appropriate. Committee is a body that exercises
authority originally vested in the Bar Council under Section 13 of the Act, which is delegated to
the Committees through the mandate of law (Section 15 and Rule 86) or through a decision of
the Bar Council itself. Hence the members of the Committees simply hold office in the
Committees during the pleasure of the Bar Council. In its capacity as its principal, the Bar
Council has inherent power to decide in an appropriately convened meeting to reconstitute its
Committees (which in the present case was not done). In exercise of such power, it may on its
own choose to give reasons though it is not obliged by law to do so. Rule 100, therefore, cannot
be used as a shield to prevent the Bar Council from exercising its power to withdraw its
delegated authority from a set of Committee members and entrust it to another.

10. In view of what has been discussed above, this petition is dismissed and leave refused.
Let the directions contained in paragraphs 24 and 25 of the impugned judgment be given effect
to.

(Sd.)

Sh. Azmat Saeed,

JUDGE

(Sd.)

Umar Ata Bandial

JUDGE

(Sd.)

Faisal Arab
 JUDGE

SH. AZMAT SAEED, J.- I have had the privilege of examining the judgment of my
learned brother Mr. Justice Faisal Arab dismissing the instant Civil Petition. I agree with the
conclusions drawn, however, I may add my own reasons.

2. Section 15 of the Legal Practitioners and Bar Councils Act, 1973, pertains to the
Committees of the Pakistan Bar Council. The said provision reads as follows:

"15. Committees of the Pakistan Bar Council.-(1) The Pakistan Bar Council shall
constitute the following Committees, namely:--

(a) a disciplinary Committee consisting of a Judge of the Supreme Court nominated by

the Chief Justice of Pakistan, who shall be its Chairman, and four other members elected
by the Council from amongst its members:

Provided that the Attorney-General for Pakistan shall not be a member of the disciplinary
Committee;

(b) an executive Committee consisting of seven members elected by the Council from
amongst its members; and

(c) an enrolment Committee consisting of a Judge of the Supreme Court nominated by

the Chief Justice of Pakistan, who shall be its Chairman, and two other members elected
by the Council from amongst its members.

(2) The Pakistan Bar Council may constitute from amongst its members such other
Committees, including a legal education Committee, as it may deem necessary for the
performance of its functions under this Act, and may authorize any such Committee to
co-opt as its members any other persons, not exceeding such number as the Council may
determine.

(3) The Chairman of every Committee shall be entitled to vote and, in case of equality of
votes among the members of the Committee, shall have a second vote."

A bare reading of the above-said provisions reveals that two sets of Committees are envisaged;
one as mentioned in subsection (1) i.e. (a) disciplinary Committee, (b) executive Committee, and
(c) enrolment Committee; and second set pertains to the Committees under subsection (2),
reproduced herein above. It is obvious that the Members of the first set of Committees mentioned
above are elected, while with regard to the second set of Committees referred to in subsection
(2), no requirement of electing its Members is mentioned in the said provision.

3. The first set of Committees mentioned in subsection (1) exercised statutory powers as
mentioned therein while the second set of Committees referred to subsection (2) exercised
powers as may be delegated by the Bar Council.

4. An elected Office whether Constitutional or Statutory as a general principle of law is

effective for the tenure as prescribed in the Constitution or the Statute, as the case may be. A
person so elected can only be removed from Office in accordance with the provisions of the
Constitution or the Statute under which he was elevated, be it by a vote of no confidence
impeachment recall or otherwise. No general powers envisages in the Electors to unseat such
elected officials otherwise than the procedure as provided in the Statute applicable.

5. In the instant case, the life of the Committee is determined by Rule 100, which is
reproduced hereunder for ease of reference:

"100. The term of every committee shall be the same as that of the Council itself unless
the Bar Council when constituting the committee provides otherwise."

The aforesaid Rule makes it clear and obvious that the life of the Committee cannot
extend beyond the life of the Bar Council by electing the same. However, the Bar Council has
been empowered to fix the tenure of the Committee at the time of constituting the same. In the
circumstances, the minimum tenure of the Committee is not fixed by the Statute but by the Bar
Council and such power is to be exercised while constituting the Committee. Such power once
exercised or not exercised is not exhaustive and there is nothing to prevent the Bar Council from
re-exercising of such power in terms of the principle laid down in Section 14 of the General
Clauses Act, 1897.

6. The reasons adopted by my learned brother Mr. Justice Faisal Arab, would obviously
hold true with regard to the Committees constituted or rather reconstituted under Section 15(2)
ibid.

(Sd.)

Sh. Azmat Saeed,

Judge

UMAR ATA BANDIAL, J.-The petitioners and the respondents Nos.3 to 22 are
Advocates of this Court who are also elected members of the Pakistan Bar Council ("Council").
The Council performs its functions and duties through several Committees having members that
are elected by the Council. Each of the petitioners is the elected Chairman of one of the
Committees constituted by the Council. They challenge the judgment dated 13.10.2016 passed
by a learned Division Bench of the Islamabad High Court which holds that the term of the
Committees elected by the Council is terminable by the majority vote of the Council. However,
since the Council had on 03.09.2016 voted for the reconstitution of all its Committees without
notice in the agenda for that meeting, therefore, the learned High Court has remanded the said
matter of reconstitution of the Committees to the Council for reconsideration in a meeting of the
Council properly convened for the purpose.

2. The petitioners maintain that the Legal Practitioners and Bar Councils Act, 1973 ("Act")
read with Pakistan Legal Practitioners and Bar Councils Rules, 1976 ("Rules") framed pursuant
to the Act envisage a term of five years for the members of the Committees constituted by vote
of the majority of the Council on 25.01.2016. Consequently, the impugned judgment has
seriously erred by upholding the purport of the majority of the Council on 03.09.2016 to
prematurely dissolve and reconstitute all existing Committees of the Council barely eight months
after they were elected.

3. The Council was first constituted in the year 1973 under the provisions of the Act. At that
time the Act also envisaged four Provincial Bar Councils. Subsequently, by an amendment in the
Act made in the year 2014, the Islamabad Bar Council was also added at the tier of the
Provincial Councils. Under Section 4 of the Act:

"The term of every Bar Council shall be five years beginning on the first day of January
following the general elections to the Provincial Bar Councils and Islamabad Bar Council; at the
end of each term the members of the Bar Council shall cease to hold office." (emphasis
supplied).

4. The Council consists of 23 Members (section 11) who are elected on the basis of a single
transferable vote by the members of the Provincial Bar Councils and the Islamabad Bar Council.
The Attorney General for Pakistan is the ex-officio Chairman of the Council. The members of
the Council elect a new Vice-Chairman in the month of January every year [section 12(3)]. The
Vice Chairman is the executive head of the Council having functions and duties specified in Rule
85:

"85. Functions and duties of a Vice-Chairman.

(a) In the absence of a Chairman the Vice-Chairman shall exercise the powers and the
duties of a Chairman.

(b) He shall be responsible for co-ordinating the functions of all the Committees of a Bar
Council.

(c) He shall exercise control over the employees of a Bar Council and shall be
responsible for its smooth running.

(d) He shall exercise control over the functionaries of a Bar council."

5. It is evident that the Vice Chairman of the Council has a supervisory and coordinating
role whilst the functions and duties of the Council, inter alia, enumerated in Section 13, are
performed by several Committees having members elected by the Council (Section 15 and Rule
86). Three of such Committees have statutory force and are of a permanent character. These are
the Disciplinary Committee headed by a Judge of the Supreme Court having four members
elected by the Council from amongst its members; the Enrolment Committee chaired by a Judge
of the Supreme Court having two members elected by the Council from amongst its members;
and the Executive Committee consisting of seven members elected by the Council from amongst
its members. The Council is empowered to constitute such other Committees from amongst its
members, including a Legal Education Committee, as may be necessary for the performance of
its functions. The Act makes fairly detailed provisions in respect of the powers and proceedings
of the Disciplinary Committee whose decisions are appealable before the Supreme Court
(Section 48). Likewise for the Enrolment Committee which is the final authority for enrolment of
Advocates of the High Courts (Section 32). The Act also constitutes a Disciplinary Tribunal
(Section 42) headed by a Judge of the Supreme Court and having two members of the Council
elected for the purpose. The formation of the other Committees (presently sixteen) and disposal
of matters regarding management of the Council and the conduct of its affairs are also done by
the majority vote of the Council under the Rules framed by the Council in exercise of power
conferred by Section 55 of the Act.

6. Section 55(f) of the Act envisages rules to be framed on the subject of "the constitution
and functions of any Committee of the Pakistan Bar Council and the term of the office of the
members of any such Committee." In exercise of said statutory authorization by Section 55(f) of
the Act, the Council has framed Rule 100 which provides as follows:

"100. The term of every Committee shall be the same as that of the Council itself unless
the Bar Council when constituting the Committee provides otherwise." (emphasis added)

7. It is contended by the learned counsel for the petitioners that Section 4 of the Act
provides for the term of the Council to be five years and for the members of the Council to hold
their office until the end of such term. Thus, the terms of the Council and of its members are co-
extensive. It is argued that Rule 100 which is framed in exercise of power under Section 55(f) to
fix "the term of office of the members of any such Committee" adopts the logic of Section 4 of
the Act by treating the term of the Committees and their members to be coterminous, unless the
Council consciously decides to shorten the members' tenure by providing otherwise. In the
present case, the Council elected all its Committees on 25.01.2016 without limiting the term of
office of their members in the manner envisaged by Rule 100. Accordingly, it is argued that the
term of office of the members of all Committees extends until January, 2021.

8. On the other hand, learned counsel for the respondents have emphasized that Rule 100
specifies merely the term of every Committee and not the term of office of its members. All
decisions of the Council are taken by majority vote recorded by show of hands (Rule 96).
According to Rule 94, the majority of total members of the Council can transact any business
with the permission of the Chair even if it is not listed on the agenda. The Committees are
answerable to the Council under Rule 86A(i) whereby the minutes, proceedings and resolutions
adopted by the Committees must regularly be laid before the Council for its approval. Rule
86A(ii) epitomizes the majoritarian principle of governance of affairs of the Council whereby the
Council may of its own motion or otherwise revise or issue directions to a Committee, review
any proceedings taken, order passed or any decision made by such Committee of the Council.
According to Rule 86A(iii), the Council may, if so inclined, withdraw any matter or proceedings
pending before a Committee and dispose of the same itself. In the foregoing background, it is
argued that the members of the Committees are agents of the Council who have not been assured
a fixed term of office. Whereas the Committees continue to function for five years, their
members be removed, changed or shuffled by the Council at any time to improve performance of
the functions and duties of the Committees.

9. he minutes of the meeting of the Council held on 03.09.2016 record that all twenty
Committees of the Council and its Disciplinary Tribunal were reconstituted by majority vote of
the Council. These include the three statutory Committees, namely, the Disciplinary Committee,
Enrolment Committee and Executive Committee, envisaged in Section 15 of the Act and also the
Disciplinary Tribunal constituted under Section 42 of the Act. Along with six Appeals
Committees for the Provinces and the Capital Territory, composition of ten other Committees
was changed. As a result eleven members of the Council who were the elected members of the
existing Committees and the Tribunal were replaced by other eleven members who had
previously been excluded from membership and/or participation in all such fora. The said
sweeping change in the membership of all twenty Committees of the Council was made without
assigning cause, fault or reason.

10. To resolve the dispute regarding the validity of the action by the Council to reconstitute
all its Committees and Disciplinary Tribunal, it became necessary for us to inquire the
background of the differences between the parties. It transpires that the majority of votes in the
Council has shifted to the erstwhile opposition group in the Council. As a result the impugned
action, members of the erstwhile opposition group have been elected as members of all the
Committees of the Council thereby excluding the previous members thereof. The Council has
twenty three elected members. The impugned reconstitution of the Committees and Disciplinary
Tribunal of the Council was accomplished on 03.09.2016 by a majority of twelve members of
the Council by invoking the Council's power under Rule 185 to suspend Rule 100 reproduced
above. Rule 185 provides as follows:

"185. The Pakistan Bar Council, may by a resolution, passed by it in its meeting, suspend
wholly or partly, any Rule for such period and subject to such conditions, as it may deem
fit and expedient." (emphasis supplied)

11. It is a matter of fact that the Council did not specify any shorter term for its Committees
at the time of their constitution. According to the express provision of Rule 100, the term of the
Committees last during the term of the Council. The petitioners have objected that Rule 185
cannot be invoked for suspending a substantive provision of the Rules which confers a right
upon the members of the Committees of the Council to a fixed term of office as contemplated by
Section 55 (f). It is a power meant for removing difficulties, inconsistencies and procedural
obstacles blocking an emergent action by the Council that is otherwise in accordance with law.

12. The respondents reject such objection for three reasons. Firstly, that nothing in the Act or
the Rules bars the reconstitution of the Committees or the removal of their members. Secondly,
the conduct of affairs of the Council is squarely vested in the hands of the majority in the
Council which can reconsider its previous decisions, inter alia, under Rule 98; and thirdly, that
any fixed term of office claimed by the petitioners under Rule 100 is revocable by the Council
under its power derived from Section 21 of the General Clauses Act, 1897. Section 21 ibid
recognize a competent authority to, inter alia, rescind rules, bye-laws, notifications or orders that
have earlier been issued by it. For the sake of convenience, Section 21 ibid is reproduced below:

21. Power to issue, to include power to add to, amend, vary or rescind notifications,
orders, rules, or bye-laws - Where, by any Central Act or Regulations, a power to issue
notifications, orders, rules, or bye-laws is conferred, then that power includes a power,
exercisable in the like manner and subject to the like sanction and condition if any, to add
to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."

13. The arguments rendered by the learned counsel for the contesting parties have been heard
and considered carefully.
14. Disregarding the personal or political differences, if any, between the members of the
Council, there is a legal lacuna in the Act and the Rules that possibly represents the true origin of
the dispute between the parties. Neither the Act nor the Rules make any provision for removal
from office of an elected Chairman or member of a Committee of the Council by any means
whatsoever. Section 11(c) of the Act merely provides for grounds for cessation of membership of
the Council. These grounds include: appointment to an office of profit in the service of Pakistan;
suspension or removal from practice on the ground of professional misconduct; the incurrence of
disqualification on account of dismissal or removal from the service of Government or of a
public corporation; conviction for an offence of moral turpitude; declaration of being a tout or an
undischarged insolvent. However, both the Act and the Rules do not address the matter of
cessation of membership of Committees or the Disciplinary Tribunal. The consequences of loss
of confidence by the Chairmen and members of the Committees of the Council or their
inefficiency, incompetence, misconduct in the performance of their duties and functions are
altogether ignored. Hence, no impeachment, recall or vote of no confidence mechanism is
available in the Act or the Rules for authorizing remedial action by the Council. This is
notwithstanding the fact that the conduct of affairs of the Council are governed by democratic
norms under the Act and the Rules. As a result of the silence of the Act and the Rules on the
subject of accountability for loss of confidence, commission of default or misconduct by the
Chairmen and members of the Committees of the Council, the impugned action removing
existing Chairmen and members of the Committees is devoid of express legal cover under the
Act and the Rules. Therefore, the respondents have resorted to justify the impugned action by
suspending Rule 100 and are relying on external aids like powers conferred by the General
Clauses Act, 1897 and the democratic principle of majoritarian rule.

15. In the above background, the primary issue highlighted in the submissions made by the
learned counsel for the parties is whether the Council is rendered powerless for the claimed term
of five years to touch any Chairman or member of a Committee even though he has lost
confidence of the House or he has committed default or misconduct in the performance of his
duties.

16. In order to address the said question, the route adopted by the respondent majority in the
Council to deal with the situation through the impugned action requires examination. As a first
step, the agenda dated 29.08.2016 circulated for the meeting of the Council on 03.09.2016 did
not include any item regarding the reconstitution of the Committees of the Council. The
additional agenda circulated on 02.09.2016 also did not include the said item. It seems, however,
that later in the day on 02.09.2016 a requisition for the reconstitution of all Committees of the
Council was filed by eleven members of the Council before its Chairman, learned Attorney
General for Pakistan, who directed the same to be placed before the House in its meeting already
scheduled for 03.09.2016. At the meeting, the House firstly proceeded to exercise its power
under Rule 185 to suspend the operation of Rule 100 till the end of the meeting. No reason for
suspending the said rule is recorded in the minutes. Thereafter, with the permission of the Chair
the majority of the total members of the Council exercised power under Rule 94 to take up and
transact business outside the agenda of the meeting. Following that the matter of wholesale
reconstitution of the Committees was considered by the Council which voted in new members
thereof through the impugned action.
17. It may be observed that Rule 100 mandates that Committees of the Council shall have a
term of five years except where the Council expressly specifies a shorter term whilst constituting
such Committees. Suspension of Rule 100 by the majority of the Council purportedly arrested
the term of the Committees under the said rule which was implausibly presumed to authorize the
election/reconstitution of new Committees. Generally the power conferred on a competent
authority to suspend or relax rules is construed narrowly because it permits deviation from the
applicable law. Accordingly, any condition laid down in the enabling law for suspending rules is
enforced strictly. The power is construed to advance the purpose and enforce the provisions of
the enabling legislation. Reference is made to Rule 288 of the Rules of Procedure and Conduct
of Business in the National Assembly, 2007 which permits "Suspension of Rules" by the
Speaker. However, the ground for invoking this power is to overcome difficulty or inconsistency
in the application of the said Rules. The object of the said power is to facilitate the enforcement
of the Rules of Procedure. Likewise, Section 246 of the Income Tax Ordinance, 2001, empowers
the Federal Government to make orders consistent with the provision of the Ordinance in order
to remove a difficulty in the enforcement of the provisions of the Ordinance. The same principle
is expressed by Section 24 of the Civil Servants Act, 1973. Suspension of Rules cannot be
resorted for achieving a purpose extraneous to applicable law but for promoting the object of or
for the proper application of such law.

18. In the present case, no difficulty, or for that matter, inconsistency in the application of the
Act or the Rules is noted by the Council to justify the exercise of its power under Rule 185 to
suspend Rule 100 of the Rules. In the case of Mr. Fazlul Quader Chowdhry v. Mr. Muhammad
Abdul Haque (PLD 1963 SC 486), the exercise of power by the President to make adaptation in
the provisions of the Constitution in order that the Constitution as a whole should be brought into
force was questioned. In that context, the meaning of the expression "necessary and expedient"
occurring in Article 224(3) of the Constitution of 1962 for making such adaptation came under
review of this Court. It was held that the power was meant for the purpose of removing a
difficulty of one of the expressed kinds and not to achieve a purpose that was not envisaged in
the Constitution. Justice S.A. Rehman (as his lordship then was) observed as follows:

"Clause (3) of Article 224 does not confer unfettered power on the President to make any
amendments that he might choose, in the Constitution. The power is qualified by the
condition that it should be exercised for the purpose of removing any difficulties that may
arise in bringing the Constitution or any of its provisions into operation. Out of these
words, a power cannot be spelt out to alter the Constitution itself so as to change it, for
instance from the Presidential form which it clearly contemplates, to the Parliamentary
form. The Constitution as a whole has to be brought into force and if any difficulty arises
in the machinery of enforcement, it could certainly be removed by an order of the
President, within the specified time, but the word 'difficulty' could not receive such a
large connotation as to comprehend within its scope, a drastic alteration such as would
revolutionize the scheme of the Constitution itself. …"

19. No provision of the Act or the Rules envisages the removal of members of the
Committees of the Council or the reconstitution of such Committees at all, let alone at will.
Therefore the suspension of Rule 100 by the Council did not promote nor remove any difficulty
in the enforcement of any specific provision of the Act or the Rules. No ground for
dissatisfaction with the Chairmen and members of all Committees was disclosed or discussed in
General Meeting of the Council on 03.09.2016. In the circumstances, the Council failed to record
any reason for deeming it "fit and expedient" to suspend Rule 100. It is plain that suspensory
action by the Council cannot be taken arbitrarily or for a purpose extraneous to the enforcement
of the provisions of the Act and the Rules. From the record, it appears that the Council
considered term of office provided in Rule 100 to block the removal of the existing Chairmen
and members of the Committees. Therefore, Rule 185 was invoked by the Council to overcome
that hurdle without realizing that suspension of Rule 100 could not remove the Committees nor
authorize the election of new Committees. These actions make out the suspension of Rule 100 to
be extraneous and unfair. Be that as it may, any reasonable construction of the Act and the Rules
cannot support the suspension of Rule 100 by the Council.

20. Dilating further on the meaning and effect of Rule 100, it may also be observed that
Section 4 of the Act stipulates the term of the Council as being five years. That term is then
expressed by Section 4 to be the period for which a member of the Council shall hold office.
Section 55(f) of the Act contemplates specifically for the Rules to provide for "the term of the
office of the members of any such Committee." Rule 100 adopts the method and logic of Section
4 of the Act to indicate the term of a Committee to be five years except when its term is
expressly curtailed by the Council at the time of constituting the same. Any reduction in the term
of a Committee is intended to be an express act or specific provision. Such curtailment cannot in
terms of Rule 100 be presumed nor be deferred for later provision. Moreover, the meaning and
effect of Rule 100 is to be construed in the light of its enabling provision, namely, Section 55(f).
The statutory mandate in Section 55(f) for the Rules to provide for the "term of the office of the
members of any such Committee" means that the expression "Committee" occurring in Rule 100
be construed to include "members of any such Committee." A Committee is a non-existent entity
without its members who are an integral part thereof. This integrality between the collective
body and its members is also reflected in the provisions of Section 4 of the Act, by the term of
the Council being made coterminous with the term of its members. A joint reading of Section
55(f) with Rule 100 shows an identicity of tenures of both the Committees and their members.
The interpretation advanced by the respondents that Rule 100 provides merely for the life of the
Committees but does not deal with the term of office of their members is therefore theoretical. It
ignores that the empty shell of a Committee is meaningless. In recognition of this fact, Section
55(f) empowers the Council to fix the term not of the Committees but of their members. Indeed,
Section 15 mentions at least three Committees having statutory terms which cannot be adjusted
by the Council. Clearly, therefore, Rule 100 is dealing with the term of members of Committees.
This construction is consistent with reason and also explains the intention of the Council on
03.09.2016 to suspend Rule 100 before reconstituting its Committees.

21. In the foregoing background, the learned counsel for the parties have addressed the Court
on the precedents for reconstitution of the Committees of the Council occurring over the period
of 43 years since the promulgation of the Act. The learned counsel candidly acknowledge that
the absence of any mechanism in the Act and the Rules for removal of the elected Chairmen and
members of the Committees of the Council is a deliberate omission by the legislature. The
members of the Bar constitute one community, united by the principle to promote the rule of law
in the country and to establish and maintain the highest standards of excellence and ethics in the
profession of law. Accordingly, in the matters of internal management of the Council, its
members are expected to and have risen above their personal differences to take unanimous
decisions in the interest of harmony and sound management of the affairs of the Council. This
includes the subject of reconstitution of Committees of the Council. Reference has been made by
both sides to the proceedings of the 6th meeting of the Council held on 12.02.1987 at Lahore.
Paragraph-8 of the minutes of the meeting records as follows:

8. Therefore, Mr. Abdul Haleem Pirzada, with permission of the chair, informed the
meeting that to make re-adjustments the Members were unanimous to re-constitute the
Committees of the Pakistan Bar Council and proposed the following list of reconstituted
Committees. He further said that the Chairman/Members of the Committees previously
constituted by the Pakistan Bar Council in 1984, who were not maintaining their past
positions had voluntarily agreed to quit and under the new arrangement would be deemed
to have relinquished their Chairmenship/Membership." (emphasis added).

22. As a result of the above noted consensus, eleven Committees of the Council were
reconstituted by agreement of all its members. It is contended that the spirit of understanding and
harmony prevalent amongst members of the Council was disturbed long afterwards in the year
2008. The minutes of 177th (Requisitioned) meeting of the Council held on 23.08.2008 record
that the existing Committees of the Council were reconstituted by the majority of the Council
after overruling the objections based on Rule 100, and in the absence of any alleged cause or
fault justifying their reconstitution. Again, the minutes of 193rd meeting of the Council held on
25.05.2012 show that certain members of the Committees were replaced by the majority of the
Council. In this instance, the power under Rule 185 was exercised to suspend the operation of the
Rule 100 before the members of the Committees were replaced. The same action was repeated in
the 204th meeting of the Council held on 31.01.2013 but without suspending the operation of
Rule 100.

23. So long as there was a spirit of consensus within the Council, the silence of the Rules did
not prejudice action by the Council to ensure the confidence of and accountability before the
Council on either count. However, it is clear from the recent precedents of the Council's
proceedings that a change has come about in the regulation of its internal affairs. The consensus
necessary for unanimity has evaporated and groups have emerged within the fold of the Council.
As a result the majority in the Council has asserted its legal authority and clout pursuant to, inter
alia, Rules 86A, 91, 94 and 96 to 98. Undoubtedly, the principle of decision by majority vote of
members in quorum pervades the body of decisions and proceedings of the Council or its
Committees as regulated by the Act and the Rules. The present case concerns the limits, if any,
that check the power of the majority vote of the Council; in particular if such vote can override
the Rules and rights conferred by the same.

24. The significant feature about the office of the members and of Chairmen of the
Committees of the Council is that these are all elected posts. One of the ordinary incidents of an
elected office is that it bears a defined term. There may, however, be exceptions for example
where an elected office may be held by its incumbent during the confidence of the House that
elected him. The offices of the Prime Minister under Article 95 of the Constitution and of the
Chief Minister under Article 136 thereof can be retained by the respective incumbents so long as
they have the support of the majority of the House that elected them. This rule is enshrined in the
right to bring a motion of no confidence under the afore-noted Articles of the Constitution
against the respective holders of the said offices. Similar provisions exist in provincial legislation
in relation to the offices of heads of Local Governments. In the case of a fixed term of an elected
office the incumbent may be removed through his impeachment on specified grounds by the
competent House. This is reflected in the provision for removing the President under Article 47
of our Constitution.

25. We have already noted that under, inter alia, Rules 86A, 91, 94, and 96 to 98 of the
Rules, the majority of total members in the Council has substantive powers to assume complete
control of the affairs of the Committees, to reverse or undo their decisions and also the actions of
the Council. It becomes crystal clear that the underlying ethos and basis furnished by the Act and
the Rules for the constitution and working of the Council and its Committees is majoritarian rule
and democratic decision making. Rule by the chosen representatives of the electorate and the
rule of law are the two fundamental pillars of a democratic order. These essential features of a
democratic order were succinctly noted by this Court in Federation of Pakistan v. Muhammad
Nawaz Sharif (PLD 2009 SC 644):

54. The Constitution of Pakistan provides for a democratic system of governance,

"wherein the principles of democracy, freedom, equality, tolerance and social justice as
enunciated by Islam shall be fully observed." But democracy does not mean merely
holding of periodical elections or a government by a political party having majority in the
Parliament. It epitomizes the cherished values of freedom, democracy, due process and
the rule of law. It encompasses a whole range of sociopolitical and economic rights. …"
(emphasis added)

26. In the eyes of the law the holder of an elective office has a different standing from an
executive appointee. The former is the winner in a democratic process whilst the latter represents
the choice of executive discretion. Executive appointments and action are, inter alia, subject to
the provisions of the General Clauses Act, 1897; but elected office bearers cannot be recalled
under executive orders unless expressly authorized by the law. By providing the afore-noted
motions of no confidence and impeachment, our Constitution and the law install mechanisms for
recalling electoral verdicts. These motions possess a certain degree of due process and fairness
by expressly granting prior notice and hearing to the affected person before terminating his
elected term. The conditions for election to an office, holding the same and removal therefrom
are creatures of legislation. Motions of no confidence or of impeachment must be provided
expressly by the law and cannot be presumed or imported into the law. The absence thereof in
the enabling law grants an uninterrupted term of office to the incumbent rather than conferring a
naked power on the electorate/electoral college to repudiate at will or a whim the mandate of its
confidence.

27. In the present case, the reliance placed on democratic norms by the majority in the
Council to justify their impugned action against elected members and Chairmen of the
Committees may have legal force if their majority vote also had the backing of the law. This
requirement stems from the fact that the right to elect a person or to remove him from office is a
statutory right. In Hamida Begum v. Provincial Election Authority (PLD 1966 Lahore 560), it is
held that "a right to vote is not a common law right, but is a creation of the statute. A dispute as
to casting of votes or other matters at an election must be decided under and in accordance with
the enacted law." To the same effect are dicta laid down in Asif Nawaz Fatiana v. Walayat Shah
(2007 CLC 610) and Muhammad Ibrahim Qasmi v. Election Commission of Pakistan (PLD 2008
Peshawar 84). A lucid statement of the different facets of the said principle is made in Mohan
Lal Tripathi v. District Magistrate Rae Bareilly (AIR 1993 SC 2042 at page 2045) as follows:

2. … But electing representatives to govern is neither a 'fundamental right' nor a 'common

law right' but a special right created by the statutes, or a 'political right' or 'privilege' and
not a 'natural', 'absolute' or 'vested right'. 'Concepts familiar to common law and equity
must remain strangers to Election Law unless statutorily embodied.' Right to remove an
elected representative, too, must stem out of the statute as 'in the absence of a
constitutional restriction it is within the power of a legislature to enact a law for the recall
of officers'. Its existence or validity can be decided on the provision of the Act and not, as
a matter of policy. … [T]he removal of the appellant by a vote of no-confidence by the
Board which did not elect him was subversive of basic concept of democracy.
Academically the submission appeared attractive but applied as a matter of law it appears
to have little merit. … In modern political set up direct popular check by recall of elected
representative has been universally acknowledged in any civilised system. Efficacy of
such a device can hardly admit of any doubt. But how it should be initiated, what should
be the procedure, who should exercise it within ambit of constitutionally permissible
limits falls in the domain of legislative power. … Therefore, the validity or otherwise of a
no-confidence motion for removal of a President, would have to be examined on
applicability of statutory provision and not on political philosophy. … The recall of an
elected representative therefore, so long it is in accordance with law cannot be assailed on
abstract notions of democracy."

The above mentioned principles were considered and applied in Partap Chandra Mehta v. State
Bar Council of Madhya Pradesh and others [(2011) 9 SCC 573] whilst determining whether Rule
122A of the Bar Council Rules of a State conferring the right of a no confidence motion on the
members of the State Bar Council against their Chairman and Vice Chairman was ultra vires the
parent law, the Advocates Act, 1961. The Indian Supreme Court rejected the challenge to the
vires of the impugned rules. It held that so long as there was a legal provision controlling the
motion of no confidence which avoided its arbitrariness or unreasonableness, such rule was intra
vires the power of the State Bar Council to frame rules 'to carry out the purpose of the Act'
(Advocate Act, 1961). The conclusion drawn has relevance to the facts of the instant case and is
reproduced below:

80. In face of the above enunciated principles, we are of the considered view that the
concept of just cause and right of hearing, the features of common law, are not applicable
to the elected offices where a person is so elected by majority in accordance with
statutory rules. It would also have hardly any application to moving of a "no confidence
motion" insofar as these are controlled by specific provisions and are not arbitrary or
unreasonable. There is nothing in Rule 122A of the M.P. Rules that requires adherence to
these two concepts when a motion of no confidence is moved against a sitting
Chairman/Vice-Chairman. Of course, it does not imply that the action can be arbitrary or
capricious and absolutely contrary to the spirit of the Rule. There is no dispute in the
facts of the present case that majority of the members had passed the "no confidence
motion" in the 16th Meeting of the State Bar Council on 16-04-2011.
 81. We are not able to accept the view taken by the High Court of Delhi in Bar Council of
Delhi [Bar Council of Delhi v. Bar Council of India, AIR 1975 Del 200] in saying that
solely with the aid of the General Clauses Act, the power to elect would deem to include
power to remove by a motion of no-confidence, particularly, with reference to the facts
and circumstances of the instant case. The power to requisition a "no-confidence motion"
and pass the same, in terms of Rule 122-A of the M.P. Rules, is clear from the bare
reading of the Rule, as relatable to loss of faith and confidence by the elected body in the
elected office bearer. We have already discussed in some detail and concluded that Rule
122-A of the M.P. Rules is not ulta vires the provisions of the Advocates Act, including
Section 15. …"

28. Two established and admitted facts may be reiterated. Firstly, that the Rules framed in
exercise of power delegated by Section 55 of the Act do not make provision for the Council to
impeach or pass a vote of no confidence against the Chairmen or members of the Committees.
Secondly, in the present facts of the case Rule 100 envisages in mandatory words that the term of
office of members of the Committees shall run co-terminously with the term of the Council. This
is because notwithstanding its one time power to fix a shorter term of the Committees at the time
of constituting these, the Council did not do so, and thereby confirmed the full term of five years
for such Committees. Consequently, it is a legal right of the Chairmen and members of the
Committees that the tenure of their offices equals the full term of the Council. The excerpts of
law reproduced above clarify that this right of elected officer bearers cannot be defeated by the
majority in the Council without express authority under the Rules. Therefore, resort to the
suspension of Rule 100 or electing new Committee members or relying on democratic notions is
inconsequential. Although the no confidence of the majority of the Council in the Chairmen and
members of the Committees is duly expressed yet their vote and its result lacks the sanction and
authority of law. It is, therefore, ineffective and invalid. The element of rule of law necessary for
democratic governance and noticed in Muhammad Nawaz Sharif's case (PLD 2009 SC 644)
requires that suitable amendment be made in the Rules to incorporate the right of the members of
the Council to bring a motion of no confidence or of impeachment as may be deemed appropriate
against, inter alia, members and Chairmen of the Committees.

29. The above discussion refutes the argument of the learned counsel for the respondents that
the Council has a residuary power under Section 21 of the General Clauses Act, 1897 to lawfully
remove Committee Chairmen and members. It may be added that the said statute in general and
in particular Section 21 thereof relates to the exercise of delegated authority by statutory
functionaries. The settled law of the land denies any authority to statutory functionaries to take
away accrued legal rights of affected persons. Reference is made to Alsamrez Enterprise v.
Federation of Pakistan (1986 SCMR 1917), Zaman Cement Company (Pvt.) Ltd. v. Central
Board of Revenue (2002 SCMR 312) and Collector of Central Excise and Land Customs v.
Azizuddin Industries Ltd. (PLD 1970 SC 439). The term of offices of Chairmen and members of
the Committees of the Council are their accrued legal right under Rule 100 which cannot be
divested by invoking the power under Section 21 ibid. Equally other powers conferred by the
General Clauses Act, 1897 are inapplicable.

30. Having expressed the foregoing view, there remains a poignant question for consideration
by the Court. It is undisputed that the Council is constituted by Statute and all its proceedings
and actions are regulated and governed by democratic norms that are laid down in the Act and
the Rules. It is also a matter of fact that the Council performs the bulk of its functions through
the elected Committees which are governed by the same norms. Given that the procedure of
review, reversal and disposal by the Council of matters pending before the Committees (Rule
86A) is cumbersome and impracticable, there exists a serious lacuna in the regulation of the
affairs of the Council. By the absence of a mechanism for impeachment or a vote of no
confidence or recall otherwise in the Act or the Rules, the accountability of the Chairmen and
members of Committees by the majority in the Council stands totally blocked. To our minds, the
elements of transparency in actions, the confidence of and accountability before the electorate
are crucial for the functioning and development of democratic governance in any institution. This
is more so the case with the Council which is created by statute and is the highest representative
professional body of the legal community in the country which plays a pivotal role in the
dispensation of justice by the Courts of law.

31. In the foregoing perspective, the state of the present regulatory framework of the Council
is in conflict with its underlying basis and ethos as envisaged by the Act and the Rules. In order
to implement such underlying basis and ethos and to secure the rights of the members of the
Council pursuant thereto, it is necessary that the Council must in exercise of its power under
Section 55 of the Act incorporate an appropriate mechanism within its Rules setting out the
conditions on which the terms of the Chairmen and members of the Committees may be
terminated by the members of the Council. An amendment in the Rules is therefore necessary for
carrying out the scheme of the Act and for enforcing better democratic governance of the
Council as contemplated by the Act and the Rules. The substantive terms of the amended rules
are left to the able and experienced hands of the members of the Pakistan Bar Council who are
all Advocates of this Court.

32. However, in this regard, the Court is inclined to offer in the meantime certain guidelines
for promoting confidence of the Council in its office bearers and for transparency and
accountability in the discharge of their functions. There is precedent that guidelines were issued
by the Court to advance the statutory scheme and objects of the Council in the case of Pakistan
Bar Council v. Federation of Pakistan (PLD 2007 SC 394); again to ensure transparency in
functioning of public bodies guidelines were issued in Ghulam Rasool v. Government of
Pakistan (PLD 2015 SC 6). The fundamental basis of the Council requires that any contradictory
lacuna in its framework be removed by express law. Accordingly, it is recommended that the
requisite amendments be framed by the Council within a period of six months from the date of
this judgment.

33. It is further remarked that in case the Council fails to frame the requisite amended Rule(s)
within the given timeframe, then it is observed that as a default measure, the presently elected
members of the Committees and the Disciplinary Tribunal of the Council shall be deemed to
have a term of two years rather than five years. In other words, they shall upon the lapse of two
years after their election to their offices be required to secure a fresh vote of confidence of the
majority of the total members of the Council in order to retain their offices. At the said election
of the Committees, the Council shall, if so inclined, have the opportunity to fix a shorter term of
the Committees. The fresh elections for constituting the Committees and Disciplinary Tribunal
of the Council shall accordingly be held in the month of January, 2018 on a date fixed by the
Chairman of the Council.
 As a result, this petition is converted into an appeal and partly allowed in above terms
with no order as to costs.

MWA/M-21/L Petition dismissed.

P L D 2016 Sindh 618

Before Aqeel Ahmed Abbasi, Munib Akhtar, Muhammad Ali Mazhar, Sadiq Hussain
Bhatti and Salahuddin Panhwar, JJ

Messrs ABID S. ZUBERI and others---Complainants

Versus

Messrs Khawaja SHAMS-UL-ISLAM and another---Respondents

Criminal Miscellaneous Application No.79 of 2014, decided on 26th January, 2015.

(a) Contempt of Court Ordinance (V of 2003)---

----Ss. 6, 7, 9 & 11---Constitution of Pakistan, Art. 204---Legal Practitioners and Bar Councils
Act (XXXV of 1973), Ss. 42 & 54---Criminal and judicial contempt of court---Use of abusive
and contemptuous language against Judge of the High Court---Judge exercised restraint in not
taking cognizance of the contempt---Advocates witnessing the alleged contempt filed complaint
before Chief Justice of the High Court for taking action against alleged contemnors---
Maintainability---Alleged incident took place in Court room of a Judge of the High Court, who
instead of taking cognizance of the alleged contempt himself or referring the matter to the Chief
Justice for appropriate action in terms of Art.204 of the Constitution and Contempt of Court
Ordinance, 2003, exercised judicial restraint and demonstrated the grace and magnanimity which
was expected from a Judge of superior Court---However, the Advocates, who witnessed the
alleged incident in the open Court and were directly concerned and felt aggrieved, considered it
their duty to report the matter to the Chief Justice to take appropriate action against the alleged
contemnors---Bona fide of advocates in referring the matter to the Chief Justice to protect and
safeguard the sanctity of the Court as well the honour of the Judge could not be doubted---Upon
such complaint, the Chief Justice of the High Court, after having taken notice of the alleged
incident, constituted Full Bench for taking appropriate action as per law---In such circumstances
when complaint had been filed by the advocates there was no impediment in taking cognizance
of such complaint by Full Bench of the High Court and issuing a show cause notice to the
alleged contemnors.

(b) Contempt of Court Ordinance (V of 2003)---

----Ss. 6, 7, 9 & 11---Constitution of Pakistan, Art. 204---Legal Practitioners and Bar Councils
Act (XXXV of 1973), Ss. 42 & 54---Criminal and judicial contempt of court by advocates---Use
of abusive and contemptuous language against Judge of the High Court---Unconditional apology
tendered by contemnors---Effect---Show cause notices, discharge of---Alleged contemnors
instead of defending the allegations or contesting the contempt proceedings on merits,
surrendered themselves at the mercy of the Court by tendering unconditional apology---Such
unqualified apology tendered soon after issuance of show cause notices for alleged contempt of
court and professional misconduct was accepted by the High Court, and show cause notices for
contempt of court were discharged---High Court observed that the alleged contemnors should be
careful in future and abstain themselves from indulging in any such act, which may in any
manner lower the dignity and honour of the Court or the Judges, and should ensure to conduct
themselves in a manner, which was required from every professional lawyer, who was expected
to demonstrate the highest norms of ethics and decency; that if the alleged contemnors indulged
themselves in any such activity, which in any manner was contemptuous or scandalous in nature,
then, they would expose themselves to legal proceedings in accordance with law without any
further leniency in such regard.

Imran Khan,Chairman, Pakistan Tehreek-e-Insaf v. State PLD 2014 SC 367; Masroor

Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Baz Muhammad Kakar and others v. Federation
of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Dr. Muhammad
Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD
2013 SC 413 and Robkar-e-Adalat v. Muhammad Younas Arvi PLD 2015 HC(AJ&K) 1 rel.

(c) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204---Contempt of Court---Judicial restraint---Scope---

High Court observed that Judicial restraint, magnanimity and good grace should always be
demonstrated by a Judge, who was saddled with onerous responsibility to impart justice to all
without any fear, favour or ill will.

(d) Legal Practitioners and Bar Councils Act (XXXV of 1973) ---

----Ss. 42 & 54---Contempt of Courts Ordinance (V of 2003), S. 3---Constitution of Pakistan,

Art. 204---Contempt of court---Advocate, duty of---Scope---In order to facilitate the process of
delivering speedy and impartial justice to the litigant parties, it was the duty of an Advocate to
provide all necessary assistance on facts and law to the Court---In such process an Advocate was
required to observe not only the legal ethics and etiquettes as per Legal Practitioners and Bar
Councils Act, 1973, but also to demonstrate utmost care and caution towards maintaining Court's
decorum---Submissions made on behalf of clients and the language used should be temperate
and polite without impugning the integrity or impartiality of the Judge and in no manner should
lower the dignity of the Court.

Arshad Tayebaly, Abdul Hafeez Lakho, Syed Ghulam Shabbir Shah, Faisal Siddiqui,
Abdur Rehman and Amanullah Khan for Complainants.

Dates of hearing: 17th November, 8th and 22nd December, 2014.

ORDER

AQEEL AHMED ABBASI, J.--During the course of hearing above Crl. Misc.
Application, objection as to maintainability of instant proceedings was raised by the respondents
on the grounds that the allegations as contained in the complaint as well as in the Affidavits duly
filed by the complainant (s) are false, frivolous and concocted, and secondly, on the ground that
since no such incident took place, therefore, the matter has not been taken cognizance by the
honourable Single Judge of this Court in whose Court the alleged incident took place. Moreover,
according to Mr.Shamsul Islam, since the alleged incident has not been taken cognizance by the
Hon'ble Judge himself, who has not referred the matter to the Hon'ble Chief Justice for taking
appropriate action in terms of Contempt of Court Ordinance, 2003, therefore, the complainant(s),
who are admittedly, biased against the respondents and there is previous enmity between the
parties, are not authorized to refer the matter relating to Contempt of Court to the honourable
Chief Justice.

2. Keeping in view hereinabove objections raised by respondents, on 08.12.2014 a detailed

order was passed by this Bench, wherein, the precise facts relating to constitution of instant Full
Bench by the orders of the Hon'ble Chief Justice on the complaint of Advocates dated
14.03.2014, and the reasons for issuing show cause notice to the alleged contemnors in terms of
Contempt of Court Ordinance, 2003, as well as their misconduct in terms of Section 54 read with
Section 41 of the Legal Practitioners and Bar Councils Act, 1973, were recorded. It will be
advantageous to reproduce the above order hereunder for the sake of convenience and to avoid
repetition:-

"08.12.2014

This Full Bench has been constituted by the orders of the Hon'ble Chief Justice on the
complaint dated 14.03.2014 signed by about fifty Advocates of this Court as well as of
subordinate Courts, supported by affidavits of about ten Advocates, addressed to the
Hon'ble Chief Justice of Sindh High Court against M/s. Khawaja Shams-ul-Islam and
Khawaja Saifiul-Islam, Advocates, for their alleged contemptuous conduct in the Court
Room of learned Single Judge of this Court on 14.03.2014 and disorderly conduct in the
High Court Bar room, which has been forwarded by the Honorary Secretary, Sindh High
Court Bar Association, Karachi, vide covering letter dated 15.03.2014 addressed to the
Registrar, High Court of Sindh, Karachi. The matter was placed before the Hon'ble Chief
Justice by stating the relevant facts and orders were solicited from the Hon'ble Chief
Justice on the following proposals:-

A. In view of the above, as directed, it is proposed that considering the serious allegations
of misconduct raised against the concerned advocates, the complaint may be converted
into Criminal Miscellaneous Application and the same may be placed before a Bench for
further hearing.

OR

B. Any other order as deemed fit and proper may be passed.

(2) On the aforesaid proposal, the Hon'ble Chief Justice has been pleased to convert the
complaint into Criminal Miscellaneous Application with the direction to the office to
register and number the application and to fix it before the Full Bench after notice to the
Secretary, Sindh High Court Bar Association, Karachi. Accordingly, the matter was taken
up for hearing by this Full Bench after notice to the Secretary, Sindh High Court Bar
Association, Karachi, on 14.04.2014, when Mr. Asim lqbal, the Secretary, Sindh High
Court Bar Association submitted that since he has simply forward the complaint as
Honorary Secretary, Sindh High Court Bar Association, Karachi, therefore, his name may
not be mentioned in the title of instant Crl. Misc. Application and requested for suitable
amendment in this regard as according to him, the Sindh High Court Bar Association,
Karachi, has simply acted as the medium through which the complaint has been
forwarded. In view of hereinabove contention of the Honorary Secretary, Sindh High
Court Bar Association, Karachi, office was directed to change the title of instant
proceedings to be read provisionally as "Proceedings in re: alleged incidents on
14.03.2014" . In view of some serious allegations as pointed out by the Secretary, Sindh
High Court Bar Association in the Complaint and the Affidavits of the Advocates against
M/s Khawaja Shams-ul-Islam and Khawaja Saif-ul-Islam, we deemed it appropriate to
first issue notice of these proceedings to the respondents as well as A.G. Sindh, whereas,
respondent M/s Khawaja Shams-ul-Islam and Khawaja Saif-ul-Islam, who were
voluntarily present in Court, waived notice and claimed copies, which were supplied.
However, Notice on the listed applications including applications filed on behalf of
respondents M/s Khawaja Shams-ul-Islam and Khawaja Saif-ul-Islam, was deferred.
Thereafter, the matter was taken up for hearing on number of dates when Mr. Asim lqbal.
Honorary Secretary, Sindh High Court Bar Association, Karachi and M/s. Faisal
Siddiqui, Abdul Hafeez Lakho, and Arshad Tayebaly, and Mr. Amanullah Khan,
Advocates made their submissions on behalf of complainant(s). In order to avoid
repetition of the submissions made by the learned counsel for the complainant(s) we
would summarize their submissions in the following manner:-

(3) Learned counsel for the complainant(s) have argued that through a written complaint,
which has been duly signed by fifty Advocates along with affidavits of ten Advocates,
including the eye-witnesses of the incident, the Hon'ble Chief Justice has been appraised
of two separate incidents, both of the same date i.e. 14.03.2014, whereas, first incident
took place in the Court room of the learned Single Judge of this Court (Justice Nazar
Akbar) in front of large number of Advocates and the litigant parties, which has been
detailed in para. 5 to 7 of the complaint, and the second incident took place around 1.00
p.m. on the same day at the Bar Room, Sindh High Court Bar Association, which has
been detailed in para-9 of the complaint, which according to learned counsel for the
complainant(s), reflect upon the contemptuous and disorderly behavior of the respondents
M/s Khawaja Shams-ul-Islam and Khawaja Saif-ul-Islam, Advocates towards the Court
and the Hon'ble learned Single Judge of this Court as well as gross misconduct towards
the colleague Advocates of this Court, without any provocation hence amounts to
misconduct and Contempt of Court.

(4) Learned counsel for the complainant (s) after having readout the words attributed to
the respondent Khawaja Shamsul Islam for having been uttered by him in open Court and
by referring to the provisions of Sections 41 and 54 of Legal Practitioners and Bar
Councils Act, 1973 as well as the provisions of Section 3, 4, 6, 7, 9 11 and 17 of the
Contempt of Court Ordinance, 2003, submitted that this Court by taking cognizance of
the complaint and the material available on record may not only forward the complaint to
the Provincial Bar Council for action in terms of Section 41 of the Legal Practitioners and
Bar Councils Act, 1973 against the respondent by suspending their licence, but may also
initiate the Contempt of Court proceedings against the alleged contemnors, who
according to learned counsel for the complainant(s) have grossly misconducted
themselves and tarnished the dignity, sanctity and honour of the learned Single Judge as
well as of this Court by their disorderly and contemptuous conduct in the open Court in
front of large number of Advocates and litigant parties. It has been further argued by the
learned counsel for the complainant(s) that though, the first incident which took place in
open Court has not been reported by the Honourable Judge himself to the Hon'ble Chief
Justice for initiation of Contempt of Court proceedings against the alleged Contemnors,
however, a written complaint has duly been forwarded by large number of Advocates,
including eye-witnesses of both the incidents, which complaint is duly supported by the
affidavits of ten Advocates, which corroborates with the contents of the complaint by
giving the entire detail of the gross misconduct and contemptuous behavior of the alleged
Contemnors, which has been duly taken cognizance by the Hon'ble Chief Justice of this
Court, who has been pleased to convert the said complaint into Criminal Misc.
Application and has been further pleased to constitute this Full Bench for decision in this
regard. Per learned counsel, from bare perusal of the contents of the complaint and the
affidavits filed by the Advocates in this regard, it has emerged that the respondents i.e.
alleged contemnors have grossly misconducted themselves by using abusive and
contemptuous language against the Hon'ble Judge of this Court on the face of the Hon'ble
Judge and in front of large number of Advocates and litigant parties, and have
consciously made an attempt to ridicule and scandalize the Hon'ble Judge of this Court
and have also obstructed the course of judicial proceedings and has thus committed
Contempt of Court, including criminal contempt and judicial contempt as defined under
the Contempt of Court Ordinance, 2003. In support of their contention, learned counsel
for the complainant(s) have placed reliance in the cases of:

(i) Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC
823

(ii) The State v. Haji Dildar Ahmed, Advocate and another PLD 1999 Lahore 156

(iii) Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000
SCMR 1969

(iv) The State v. Muhammad Akbar Cheema, Advocate PLD 2006 Lahore 193

(v) Mst.Azra Sultana v. Ghulam Asghar Jatoi and another [2011 PCr.LJ 434]

(vi) Justice Hasnat Ahmed Khan and others v. Federation of Pakistan/State PLD 2011
SC 680

(vii) Mian Abdul Waheed v. Addl.Sessions Judge, Lahore [2011 PCr.LJ 438]

(5) Conversely, the respondents M/s Khawaja Shams-ul-Islam and Khawaja Saif-ul-
Islam, Advocates have voluntarily shown appearance waived notice of the proceedings
and filed their written reply to the allegations as contained in the complaint, and
submitted that they will appear in person without engaging a counsel. Mr. Khawaja
Shamsul Islam Advocate while making submission on his behalf as well as on behalf of
Mr. Khawaja Saiful Islam, raised an objection as to maintainability of instant proceedings
on the ground that firstly, [the allegations as contained in the complaint as well as in the
Affidavits duly filed by the complainant (s) are false, frivolous and concocted, and
secondly, on the ground that since no such incident took place, therefore, the matter has
not been taken cognizance by the Honourable Single Judge of this Court in whose Court
the alleged incident took place. Moreover, according to Mr.Shamsul Islam, since the
alleged incident has not been taken cognizance by the Hon'ble Judge himself, who has
not referred the matter to the Hon'ble Chief Justice for taking appropriate action in terms
of Contempt of Court Ordinance, 2003, therefore, the complainant(s), who are
admittedly, biased against the respondents and there is previous enmity between the
parties, are not authorized to refer the matter relating to Contempt of Court to the
Honourable Chief Justice, whereas, the allegations as contained in the complaint or in the
affidavits are not supported by any material or evidence, hence, this Court may not take
cognizance of these frivolous and baseless allegations. It has been further contended that
distorted version of both the incidents has been recorded in the complaint and affidavits,
which contain false and frivolous allegations, whereas, the respondents themselves have
brought the actual incident to the Notice of the Hon'ble Chief Justice on the very date of
incident, even before filing of the instant complaint on 15.03.2014 by the complainant(s)
through Secretary, Sindh High Court Bar Association, Karachi. It is contended that since
no order has been passed by Hon'ble Chief Justice on the complaint filed by the
respondents, therefore, the respondents have filed such complaint in these proceedings
through listed application, which contain the actual facts of the incident and will establish
the falsity of the instant complaint. It has been further contended by Mr. Shamsul Islam
that by initiating these frivolous proceedings, the complainant(s) who have made an
assault upon the respondents to cause harm and injury to the respondents, have concocted
a false story in order to pre-empt to avoid initiation of criminal proceedings and
proceedings for gross professional misconduct against them by the respondents. It has
been further contended that the Secretary, Sindh High Court Bar Association is not
competent to forward the complaint without approval of the Managing Committee, as
according to respondents, no Office Bearer of the Sindh High Court Bar Association is
the signatory of the complaint. Mr. Shamsul Islam further contended that most of the
complainants are from the same office of M/s. Abid S. Zuberi, the complainant in the
instant case, and some of them are even not the members of the Sindh High Court Bar
Association. Respondents further submitted that infact, there is no complaint in terms of
Contempt of Court Ordinance 2003, whereas, through a letter addressed to Registrar,
Sindh High Court, purported complaint has been attached. It has been further contended
by the respondents that even from perusal of the contents of the complaint, it is evident
that it contains the malicious and frivolous allegations against the respondents, which do
not otherwise have any bearing or nexus with the alleged incident, which reflects that the
complainants are bent upon to involve the respondents in false and frivolous proceedings
in order to settle some account with the respondents, by abusing the process of Court.
While, concluding the submissions, Mr. Shamsul Islam has submitted that no case of
contempt of Court or misconduct by the respondents is made out, whereas, in view of
contradictory versions of the complainant (s) as reflected in the complaint and in the
affidavits filed along with the complaint the very allegations stand falsified and create
serious doubt into the allegations, therefore, in view of the decision of this Court as well
 as of the Hon'ble Supreme Court in such matters instant proceedings may be dismissed in
limine. In support of his contention, Mr. Shamsul Islam has placed reliance in the
following case laws:-

(i) Muhammad Iqbal Zafar v. The State 1 977 SCMR 474

(ii) Dr. Asif Hussain Jafri v. K.B. Bhutto, Advocate PLD 1990 Karachi 173

(iii) West Pakistan Water and Power Development through its Chairman v.
Chairman, National Industrial Relations Commission PLD 1979 SC 912

(iv) American Life Insurance Company (Pakistan) Ltd. v. Master Agha Jan
Ahmed and another 2011 CLD 350

Mr Saiful Islam has adopted the submissions as advanced by Mr.Shamsul Islam.

(6) Mr. Sibtain Mehmood, learned AAG present in Court on Notice, while concurring
with the arguments of learned counsel for the complainants has contended that from
perusal of the contents of the complaint duly signed by fifty Advocates and the affidavits
filed by number of advocates, whereby, the two incidents, which took place in the Court
room of a Hon'ble Judge of this Court and in the Bar room, prima facie case of Contempt
of Court and gross misconduct by the respondents has been made out, whereas, the
Advocate General Office is willing to proceed against the alleged contemnors in
accordance with law. It has been further contended by the learned AAG that since serious
allegations have been leveled against the respondents by large number of Senior
Advocates of the High Court Bar Association about the misconduct and contemptuous
behavior of the respondents, in presence of eye-witnesses in the open Court of Hon'ble
Judge of this Court, as well as in the Bar Room of Sindh High Court Bar Association,
whereas, a written complaint has been forwarded to the Hon'ble Chief Justice by such
persons in terms of Contempt of Court Ordinance, 2003, who after having taken
cognizance has placed the matter before this Full Bench for taking cognizance and to
decide it in accordance with law, therefore, a show cause Notice may be issued to the
alleged contemnors, whereafter, charge may be framed and the matter may be proceeded
against them in accordance with law. In support of his contention, learned AAG has
placed reliance in the following case laws:-

(i) G.S. Gideon, Advocate v. The State PLD 1963 SC 1

(ii) The State v. Ashfaq Ahmed Sheikh PLD 1967 Lahore 1231

(iii) The State v. Haji Dildar Ahmed, Advocate and another PLD 1999 Lahore 156

(7) We have heard the learned counsel for the complainant(s), the respondent(s) and
learned AAG Sindh on the subject controversy, perused the contents of the complaint by
the affidavits filed by the Advocates, the reply submitted by the respondents as well as
the relevant provisions of Legal Practitioners and Bar Councils Act, 1973, and the
Contempt of Court Ordinance, 2003 with their assistance. Since the objection as to the
nature of the instant proceedings and its maintainability has been raised by the
respondents, we deemed it appropriate to examine this aspect of the matter before
formally proceeding against the respondents on the allegations of contempt and
misconduct by initiating the Contempt of Court under Contempt of Court Ordinance,
2003 read with Article 204 of the Constitution or/and by taking cognizance of the matter
under Section 54 of the Legal Practitioners and Bar Councils Act, 1973, by referring the
matter to the Provincial Bar Council in terms of Section 41 of the Legal Practitioners and
Bar Councils Act, 1973, and have therefore, provided an opportunity to the counsel for
the complainant(s) and the respondents to assist this Court on the subject.

(8) We have examined the relevant provisions of Contempt of Court Ordinance, 2003
with particular reference to Section 2(b)(c)(f), Sections 3, 4, 6, 7, 9, 11 and 17 in order to
appreciate as to whether, the complaint of the Advocates of Sindh High Court brought to
the notice of Hon'ble Chief Justice of this Court accompanied by affidavits of the
Advocates, who are reportedly eye-witnesses of the two incidents, which allegedly took
place in the open Court of the Hon'ble Judge of this Court on 14.03.2014, in front of
number of Advocates and the litigant parties, and in the Bar room of Sindh High Court
Bar Association on the same date, has rightly been taken cognizance by the Hon'ble Chief
Justice, who has been pleased to constitute this Full Bench to examine the complaint and
to decide the same in accordance with law. We have noted that instant matter is peculiar
in the sense that admittedly, the Hon'ble Judge of this Court in whose Court the first
alleged incident took place has neither taken cognizance of the alleged contemptuous
misconduct by the respondents by initiating contempt of Court proceedings against them
nor has referred the matter to the Hon'ble Chief Justice for taking appropriate action
against the respondents under the Contempt of Court Ordinance, 2003 read with Article
204 of the Constitution of Islamic Republic of Pakistan, 1973. For this reason perhaps,
the Hon'ble Chief Justice, instead of treating this complaint as Criminal Original Petition,
converted the same into the Criminal Misc. Application and directed the office to place
before this Full Bench for decision in accordance with law. We may observe that under
the Contempt of Court Ordinance, 2003, the contempt of Court has been categorized into
three categories (i) Civil Contempt (ii) Criminal Contempt and (iii) Judicial Contempt.
From tentative perusal of the record of the instant case and the words spoken allegedly by
the alleged contemnor for the Hon'ble Judge in open Court on the face of the Hon'ble
Judge, it appears that the respondents have committed Contempt of Court, including
criminal contempt of the Court and/or judicial contempt of Court. We have examined the
provisions relating to criminal contempt as contained in Sections 6, 7, 9 and 11 of the
Contempt of Court Ordinance, 2003 and are of the tentative view that the alleged incident
amounts to criminal contempt by means of either diverting the course of justice or
having, intentionally or otherwise, the effect of obstructing the course of justice. In cases
of criminal contempt, the cognizance can be taken under Section 7 of the Contempt of
Court Ordinance 2003 by a Superior Court either (i) Suo Motu or (ii) on the initiative by
any person connected with the proceedings in which the alleged contempt has been
committed or (iii) on the application of the law officer of a Provincial or Federal
Government. Prima-facie, it appears that the cognizance in the instant matter can be taken
by this Court as some of the complainant(s) are connected with the proceedings in which
the alleged contempt has been committed. We may also refer to provision of Section 9 of
the Contempt of Court Ordinance, 2003, which defines personalized criticism of specific
Judge or Judges, which may constitute judicial contempt in such case a complaint is to be
 made to the Hon'ble Chief Justice of the High Court, which in the instant matter has been
made by the complainants, who are also reportedly eye-witnesses of the alleged incident.
Similarly, in terms of subsection (1) of Section 11 of the Contempt of Court Ordinance,
2003, this Court is authorized to take cognizance of judicial contempt on its own
initiative, or on information laid before it by any person. We are of the view that though
the Hon'ble Judge of this Court in whose Court the alleged contempt has been committed
has not taken cognizance or initiated the contempt proceeding on his own initiative,
however, such information has been laid by the complainants before the Hon'ble Chief
Justice, who has forwarded the same to this Full Bench for a decision in accordance with
law. Subsection (3) of Section 11 provides that the judicial contempt proceedings
initiated by a Judge, or relating to a Judge, shall not be heard by the said Judge, but shall
be referred to the Chief Justice, who may hear the same personally or refer to some other
Judge, and, in a case in which the Judge himself is the Chief Justice, shall be referred to
senior most Judge available for its disposal. Therefore, there seems no impediment, if the
complaint about alleged contumacious conduct of respondents may be taken cognizance
by this Full Bench, and the contempt of Court proceedings may be initiated by issuing
them a Show Cause Notice as required in terms of Section 17(1) of the Contempt of
Court Ordinance, 2003.

(9) In view of hereinabove, M/s. Khawaja Shamsul Islam and Khawaja Saiful Islam, you
both are hereby required to Show Cause as to why, in view of the allegations as contained
in the complaint, and affidavits of the Advocates and the material available on record,
you may not be charged of having committed criminal (sic) and for judicial contempt of
Court in terms of Contempt of Court Ordinance, 2003, as well as for misconduct in terms
of Section 54 read with Section 41 of the Legal Practitioners and Bar Councils Act, 1973,
you may Show Cause and submit your reply before the next date of hearing in writing
either personally or through duly appointed Advocate(s), however, may continue to
attend the Court in person on each date unless your personal appearance is dispensed with
by the order of this Court. "

3. Pursuant to aforesaid order and the show cause Notices issued to the alleged contemnors,
the alleged contemnors though filed their written reply dated 24.01.2015 denying the allegations
of alleged contempt, however, instead of defending their case on merits, referred to the contents
of paragraph (3) of such reply, whereby, the alleged contemnors tendered their unconditional and
unqualified apology, and prayed that subject Show Cause Notice dated 17.12.2014 may be
vacated the proceedings of above Crl. Misc. Application may be dropped in the interest of
justice. It will be advantageous to reproduce the paragraph (3) of the reply by alleged contemnors
and the prayer made by them, which reads as follows:-

"03. That, without prejudice to the above as well as in following paragraph, I do hereby
submit and tender my unconditional, unqualified and sincere most apology, and leave
myself at the mercy of this Hon'ble Court with the prayer that this Hon'ble Court may
kindly take a sympathetic view pursuant to the Show Cause Notice Dated 17.12.2014
issued in pursuance of this Hon'ble Court's order dated 17.11.2014.

PRAYER
 In the manner as aforesaid, I unconditionally throw myself at the mercy of this Hon'ble
Court, which has always been very gracious, noble and generous. Accordingly, it is
humbly prayed that this Hon'ble Court may graciously be pleased to discharge and vacate
the Show Cause Notice dated 17.12.2014 issued in terms of the order dated 17.11.2014,
consequently, the proceedings of the above Cr. Misc. No. 79/14 may also be
dropped/closed in the best interest of justice."

4. Since the respondents did not want to defend themselves on the merits and placed
themselves at the mercy of Court by tendering their unconditional and unqualified apology,
therefore, keeping in view the contents of paragraph 3 of the reply to the show cause notice
issued to the alleged contemnors, vide our short order dated 26.01.2015, the show cause notices
issued to the alleged contemnors were discharged and the following short order was passed:--

"26.01.2015

For the reasons to be recorded later on, instant Crl. Misc. Application is disposed of in
view of paragraph (3) of the reply to Show Cause Notices submitted by the alleged
contemnors, who have thrown themselves at the mercy of the Court and have tendered
unconditional apology, which is accepted subject to conditions which may be imposed
while recording reasons, and consequently, the Show Cause Notice(s) issued to them
stand discharged.

The request of the complainants to send the matter to the Pakistan Bar Council, and for
taking action in terms of Section 54 read with Section 41 of the Legal Practitioners and
Bar Councils Act; 1973, in view of acceptance of unconditional apology and discharge of
Show Cause Notice(s) by this Court, is declined. However, it will not prejudice the right
of the complainant(s) to approach the Pakistan Bar Council to initiate appropriate
proceedings in accordance with law against the alleged contemnors in the instant case,
which, if so instituted, may be decided in accordance with law and on the basis of
material and the evidence which may be adduced, without being influenced with these
proceedings or observation which may reflect in the detailed reasons to be recorded by
this Court."

5. For the detailed reasons as disclosed in our order dated 08.12.2014 we are of the view
that complaint for initiating Contempt of Court proceedings against alleged contemnors was
competently instituted and thereafter referred by the Hon'ble Chief Justice to this bench to be
decided in terms of Contempt of Court Ordinance, 2003 read with relevant provisions of Legal
Practitioners and Bar Councils Act, 1973. However, since the alleged contemnors though filed
reply and denied the allegations, but did not contest the show cause and contempt proceedings on
merits and extended their un-conditional apology, therefore, we need not dilate any further upon
the validity and propriety of initiation contempt of Court proceedings and professional
misconduct against the alleged contemnors. However, we deem it appropriate to give reasons for
having accepted the unconditional written apology tendered by the alleged contemnors in the
instant matter. In the instant matter, the alleged incident took place in Court room of the Hon'ble
Judge of this Court, who instead of taking cognizance of the alleged contempt himself or
referring the matter to the Hon'ble Chief Justice for appropriate action in terms of Article 204 of
the Constitution of Islamic Republic of Pakistan and Contempt of Court Ordinance, 2003,
exercised judicial restraint and demonstrated the grace and magnanimity which is expected from
a Judge of superior Courts. However, the Advocates, who witnessed the alleged incident in the
open Court, some of those were directly concerned and felt aggrieved as well, considered it their
duty to report the matter to the Hon'ble Chief Justice to take appropriate action against the
alleged contemnors. We have no reason to doubt their bona fide while referring the matter to
Hon'ble Chief Justice in an attempt to protect and safeguard the sanctity of the court as well the
Honour of the learned Judge, and to ensure that decorum of the Court shall be maintained. Upon
their complaint, the Hon'ble Chief Justice, after having taken Notice of the alleged incident,
constituted this Full Bench for taking appropriate action as per law.

6. However, when alleged contemnors, instead of defending the allegations or contesting

the proceedings on merits, surrendered themselves at the mercy of the Court by tendering
unconditional apology, which was as such not objected to by the complainants, this Court,
keeping in view pronouncements of the Hon'ble Supreme Court, accepted such apology and
discharged Show Cause Notices issued to the alleged contemnors. In a recent judgment relating
to the contempt of court proceedings the Hon'ble Supreme Court of Pakistan in the case of lmran
Khan, Chairman, Pakistan Tehreek-e-lnsaf v. State (Crl. Original Petition No.92 of 2013)
reported as PLD 2014 SC 367 while approving the settled principle of judicial restraint to be
exercised, while deciding contempt proceedings, as well as the golden principle of (...........)
forgiveness/remission and (...........) pardon, as enshrined in Islam, has been pleased to discharge
the show cause notice issued to the alleged contemnors, even without calling upon the
unconditional and formal apology from the alleged contemnors. It will be advantageous to
reproduce hereunder the relevant findings of the Hon'ble Supreme Court as contained in Paras. 9
and 10 of above cited judgment:-

9. We have carefully considered all the submissions made by the learned ASC for Mr.
Imran Khan and also the view expressed by the learned Attorney General for Pakistan
during his brief submissions with reference to these proceedings. The submissions made
by the learned Advocate Supreme Court, as noted above, have much force, particularly in
line with the case law cited by him, as discussed above. The principle of showing judicial
restrained, particularly in the cases relating to the purported scandalization of the
judiciary through oral remarks, is by now a well recognized principle in our judicial
history, which has been time and again reiterated by the Court. In the regard, reference
may be made to the cases of Masroor Ahsan (supra), Baz Muhammad Kakar (supra), and
Allama Tahir-ul-Qadri (supra), which amply cover this proposition.

10. Besides, viewing the present proceedings on the golden principles of

forgiveness/remission and pardon, enshrined in Islam, which is one of the hallmarks of
the Islamic system of dispensation of justice, a prudent Qazi/Judge entrusted with the
onerous task of dispensation of justice is supposed to be more composed and cool minded
so as to tactfully deal with such pity notions and remarks, which might have been made
in good faith or due to a slip of the tongue. Moreover, just and fair remarks, made
unconsciously or under the tide of momentary emotions, in somewhat harsh language, are
not to be readily taken in the negative sense, but as means for soul-searching and
improvement in the system. In such circumstances, depending upon the peculiar facts and
circumstances of each case, for showing magnanimity, restraint and grace in his conduct,
a Qazi/Judge is not required to wait for an unconditional apology from the person
 charged with the allegations of using indecent language against him or for scandalizing
the judiciary as an institution."

Reliance in this regard can also be placed in the case of (i) Masroor Ahsan v. Ardeshir Cowasjee
reported as PLD 1998 SC 823; (ii) Baz Muhammad Kakar and others v. Federation of Pakistan
through Ministry of Law and Justice and others PLD 2012 SC 923; and (iii) Dr. Muhammad
Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD
2013 SC 413.

7. Similarly, in another recent judgment in the case of Robkar-e-Adalat v. Muhammad

Younas Arvi reported as PLD 2015 High Court (AJ&K) 1 under somewhat similar facts and
circumstances, the contempt of court notice issued to the Advocate of High Court Azad Jammu
and Kashmir, for having allegedly committed contempt of Court and professional misconduct,
has been discharged, and the unconditional apology tendered by alleged contemnor has been
accepted. However, directions have been issued to the alleged contemnor to be careful in future
about the dignity and respect of Courts, to act prudently in future and not to indulge in such acts
which are unbecoming of an officer of the Court, failing which the law will take its own course.

8. We are of the opinion that judicial restraint, magnanimity and good grace shall always be
demonstrated by a Judge, who is saddled with onerous responsibility to impart justice to all
without any fear, favour or ill will. Similarly, in order to facilitate the process of delivering
speedy and impartial justice to the litigant parties, it is the duty of an Advocate to provide all
necessary assistance on facts and law as well to the Court. In such process an Advocate is
required to observe not only the legal ethics and etiquettes as per Legal Practitioner and Bar
Councils Act, 1973, but also to demonstrate utmost care and caution towards maintaining Court's
decorum, whereas, the submissions made on behalf of their clients and the language used shall
be temperate and polite without impugning the integrity or impartiality of the Judge and in no
manner shall lower the dignity of the Court. Before parting with the reasons we may observe that
since the alleged contemnor(s) particularly, Mr. Khawaja Shamsul Islam has reportedly been
proceeded against on similar allegations of having committed contempt of court, wherein, he has
tendered unconditional apology. We would admonish the alleged contemnor(s) to be careful in
future and to abstain themselves from indulging in any such act, which may in any manner lower
the dignity and honour of the Court or the Judges, and shall ensure to conduct themselves in a
manner, which is required from every professional lawyer, who is expected to demonstrate the
highest norms of ethics and decency. We may further observe that if the alleged contemnors may
indulge themselves in any such activity, which will in any manner be contemptuous or
scandalous in nature, then, they will expose themselves to legal proceedings in accordance with
law without any further leniency in this regard.

9. In the instant matter, the unqualified apology tendered by the alleged contemnors soon
after issuance of show cause notice(s) for alleged contempt of court and professional misconduct
was readily accepted by this Court, whereas, Contempt Notices were discharged vide our short
order dated 26.01.2015 and these are the reasons for such short order.

MWA/A-112/Sindh Order accordingly.