P L D 1988 Supreme Court 176 (PLP)

JUSTICE MUHAMMAD AFZAL ZULLAH (CHAIRMAN).‑‑These two appeals arise out of the same case. Muhammad Ashraf appellant in Appeal No.19(S) of 1986 had filed a Criminal Revision before the Federal Shariat Court against an acquittal through Mr. Ghulam Mujtaba, Advocate, as his counsel. The Federal Shariat Court by a very short non‑speaking order directed Muhammad Ashraf to engage "another counsel". The Court, it can be presumed, acted on the definition of "Counsel" contained in clause (e) of Rule 2 of the Federal Shariat Court (Procedure) Rules, 1981. In that provision, "Counsel" means a legal practitioner who is a Muslim and has been enrolled as an?????? Advocate". As Mr. Ghulam Mujtaba is an 'Ahmadi' and not a Muslim, therefore, he was not allowed to appear "as a counsel". This order was brought under challenge by Muhammad Ashraf before this Court through petition for leave to appeal which having been granted by this Court on 19‑7‑1986 through a detailed order, the appeal has now come up for final determination. It needs to be mentioned here that the followers of bHrza Ghulam Ahmad generally known 'the Ahmadis' were declared as non‑Muslims by the Constitution. This position of the Ahmadis, now forms partly the subject‑matter of judgment by the Federal Shariat Court in Mujibur Rehman and 3 others v. Federal Government of Pakistan and another (P L D 1985 F.S.C.8). The appeals against that decision having been dismissed by this Court as withdrawn, the same also, rules this field. Leave to appeal in this case was granted on the assumption that Mr. Ghulam Mujtaba being a non‑Muslim could he, on that ground, H be debarred from acting as a counsel before the Federal Shariat Court. The arguments noted for examination were as follows: "Learned counsel has argued that Rule 2(e) read with Article 203‑E (4) can be understood to have applied to the proceedings of the Federal Shariat Court which are conducted by virtue of power conferred on it by Article 203‑D which deals with the examination of laws so as to discover repugnancy to the Injunctions of Islam. It, therefore, does not apply to that part of the jurisdiction of the Federal Shariat Court wherein it hears appeals and revisions in criminal matters decided under the Hudood Laws. He also contended that Rule 2(e) is ultra vires the following statutory and Constitutional provisions: "One: Section 22(2)(a) of the Legal Practitioners and Bar Councils Act, 1973, whereunder a legal practitioner is entitled to practise and act before any Court; Two:? Section 21 of the Offence of Zina (Enforcement of Hudood) Ordinance (No.VII) of 1979, which places limitation of religion on Court officials only to the extent that the Presiding Officer of the Court shall be Muslim. A lawyer is also an officer of the Court. There is nothing in the said law regarding his being Muslim;. Three:? The Ordinance has by virtue of Section 20 thereof made Criminal Procedure Code applicable to the cases dealt thereunder and neither the Criminal Procedure Code nor any other law which deals with the law of criminal offences places any bar on the religion of the counsel appearing for any party; Four:? Article 203‑E(4) of the Constitution wherein a specific bar has been enacted regarding the religion of the counsel but it pertains to the jurisdiction and power of the Federal Shariat Court under Article 203‑D and not when it decides criminal cases. By implication therefore the Constitution not having placed any such bar, it is argued, it could not be created by the rule‑making power of the Federal Shariat Court; Five:?? Articles 10, 18 and 25 of the Constitution with regard to: engagement of a counsel of one's choice; right of freedom to profession; and, equality before law would, it was finally argued, also come in conflict with Rule 2(e) which cannot override these Constitutional provisions." Learned counsel wanted to argue that such a bar would come in conflict with the Islamic Injunctions as contained in the Quran and Sunnah of the Holy Prophet, therefore, it would have to be struck down; but ultimately agreed that this objection could have been raised before the Federal Shariat Court by a petition under Article 203‑D and not collaterally in the criminal proceedings as are involved in this case. We, therefore, would for this reason keep aside this last argument of the learned counsel. Mr. Riaaul Hassan Gilani, learned Deputy Attorney‑General in reply contended that the Federal Shariat Court (Procedure) Rules, 1981, were promulgated after the conferment of the jurisdiction on the Federal Shariat Court to hear appeals and revisions in cases arising out of Hudood Laws. Therefore, it will have to be presumed that it was conscious that the Rule would apply to the proceedings under both the jurisdictions of the Federal Shariat Court. It, therefore, cannot be presumed that it applies only to cases arising under Article 203‑D of the Constitution. He also contended that the rules have been framed by virtue of power conferred on the Federal Shariat Court by Article 203‑J. And that being so, even if it comes in clash with any statute law or provision of the Constitution directly or indirectly, it will have force by virtue of supporting strength gained from the said Constitutional provision, namely, Article 203‑J. Mr. Ghulam Mujtaba, in fairness, in the outset, informed the Court that the criminal revision against acquittal in which the impugned order was passed, was subsequently dismissed by the Federal Shariat Court, on merits. And that although, Muhammad Ashraf appellant came in contact with him after the said final order of the Federal Shariat Court disposing of the Revision Petition, he had not expressed any desire to challenge it any further before this Court. In other words, that revisional order has achieved finality. That being so, we questioned Mr. Ghulam Mujtaba that even if this appeal is allowed and the case is remanded to the Federal Shariat Court for re‑examination of the question of his entitlement to appear in a criminal case pending before it, the main revision having been dismissed, there would be no case pending in connection with the present proceedings, in which he would be able to appear; accordingly, whether this appeal has not become infructuous? He being an experienced A.O.R. did not dispute this position and therefore made a request that the controversy may be resolved for future guidance of the Federal Shariat Court. But the appeal having become infructuous, it will not be proper for this Court to determine the questions noted for examination in the leave granting order. It is however, on further request of Mr. Mujtaba, remarked that the reasons which prevailed .with us for granting leave to appeal, can also be brought to the notice of the Federal Shariat Court by him or any other non‑Muslim lawyer, if and when a grievance in that behalf arises in that Court. To us, it appears, that the Federal Shariat Court having taken note of the objection, has already granted at least a partial relief. An amendment in the relevant rule regarding the definition of "Counsel" has been made to the effect that in cases other than Shariat Petitions under Article 203‑D, in which any of the parties is non‑Muslim, an Advocate who is not a Muslim may appear as Counsel for the non‑Muslim party. We, with the foregoing observations, dismiss this appeal as having become infructuous. The second appeal (Criminal Miscellaneous Appeal No.116‑R(S) of 1987) is an offshoot of the appeal which has just been dismissed. Mr. Ghulam Mujtaba had, after the filing, of the petition for leave to appeal, wanted to file additional grounds therein. The Assistant Registrar refused to entertain the same on the ground that the material intended to be placed on record was irrelevant and frivolous. The client of Mr. Ghulam Mujtaba, namely, Muhammad Ashraf the appellant in the said appeal, then moved this appeal before the Court under Order XVII, Rule 5 for setting aside the order passed by the Assistant Registrar on the assumption that it was reversible under Order XXXIII, Rules 1. 5 and

6. It was* admitted to hearing. A note was however made that in case, after examination, the material intended to be placed on the record of this Court was found frivolous, irrelevant and motived, whether all this was an attempt at abuse of process of the Court and whether it was misconduct. As the main appeal, on the record of which the disputed material was intended to be placed, has already been disposed of and I dismissed as infructuous, the further appeal regarding the placing on its record any more documents does not need to be decided on merits. That being so, this appeal has also become infructuous, and is dismissed accordingly ii is, however, to be remarked that the point, whether the material which was intended to be placed on the record of any of these appeals was objectionable, not having been examined on merits, we leave it to the Registrar of the Court to deal with the material in accordance with the rules and practice of the Court. With these observations and remarks both the appeals stand disposed of as having become infructuous. M. B.A./M‑343/S???????????????????????????????????????????????????????? Appeals disposed of