1968 SCMR 441 (PLP)

S. A. RAHMAN, J.-Tile petitioners election to the Last Pakistan Bar Council was challenged by the first respondent, Muhammad Sirajul Islam, by means of a petition under Article 98 of the Constitution, in the High Court of East Pakistan, Dacca. A Division Bench of that Court has declared that the petitioners are not entitled to hold the office of Member of the East Pakistan Bar Council as their election was conducted by an unauthorised person and some of the petitioners were disqualified to stand for election because of their detention under the East Bengal Public Safety Ordinance, 1951, which disqualified them for being candi dates for election to the East Pakistan Bar Council, This is a petition, on their behalf for special leave to appeal from the order of the High Court. We have heard Mr. A. K. Brohi, in support of the petition. A number of law points have been raised by him which, in our opinion, would require consideration. Inter alio, it is contended that the Membership of the East Pakistan Bar Council is not a "public office" within the meaning of Article 98 of the Constitu tion and therefore, the jurisdiction of the High Cohn was not attracted under that Article, The term 'public office' is not exhaustively defined either in the Constitution or in the Bar Council Act. It is pointed out that the office does not carry with it any emolument and that the petitioners were elected to what was a domestic forum of the East Pakistan Bar Association. Secondly, it is contended, that even if it be conceded that Mr, Jen-i-Alam who conducted the election on the assumption that be was the acting Advocate-General of the Province, did not in law, occupy that position, as has been held by the High Court, no objection having been raised to the exercise of his function at the time of the election, itself, a writ in the nature of quo warranto could not have issued even if some irregularities had been com mitted in the course of election, In this context, it was represented that the permanent Advocate-General of the Province was out of the country on special duty and Mr. Jan-i-Alam was incharge of the office of Advocate-General in his absence though he had not been formally appointed Advocate-General. Reliance in this connection is placed by Mr, Brohi on an English decision in Ward's case (1). It is also argued that the Vice-Chairman of the East Pakistan Bar Council was associated with the Resolutions passed by the Bar Council authorising the holding of the Elections on specified dates and he was also present at the time when nomination papers were scrutinised and accepted or rejected by Mr. Jan-i-Alam. In the absence of the Advocate-General the Vice-Chairman of the Bar Association was authorised under the relevant law to perform all his functions in connection with the election of the Bar Council. No objection was further taken to the eligibility of any of the petitioners to the office of Member of East Pakistan Bar Council before Mr, Jan-i-Alain himself on behalf of any of the contesting candidates. The third point raised is that the East Pakistan Bar Council was wrongly, held to be an 'elective body' within the meaning of President's Order No. XIII of 1959, by the.High Court. It is suggested that in the definition of that term the words "to be established" refer to a body which might have been established during the currency of this Order and as the Order contained a provision that it would remain in force till the 31st day of December, 1960, whereupon it shall stand repealed, the East Pakistan Bar Council, Elections to which were held long after this date, was not within the mis chief of this order. Consequently, it is maintained, the High Court fell into error in holding that some of the petitioners who had been detained for security reasons at one time or another, were disqualified under this order to stand for election. (1) (1873) 8 Q B 210 A further point is made that the petitioners took office with effect from the first of January 1967 and that is also a relevant factor as the disqualification, if any, incurred under this Order, could last only till the 31st day of December 1966, under section 5 thereof. The impugned elections were held as long ago as November 1966, and the petition under Article 98 was filed in September 1967 and was therefore, it is said, affected by laches. The writ in the nature of quo warranto is a discretion ary writ and it is forcibly argued that on the facts and circum stances of this case, no writ should have been issued. These and other points raised in the petition merit consider ation as they are of general importance and we grant leave to appeal as prayed. The petitioners will furnish security in the.A sum of Rs. 1,000 before the appeal is heard. In the meantime, the operation of the order passed by the High Court will be suspended. Petition accepted.