2024 PLP 1952 (SCMR)

Laws Cited

Representation

• ----R. 14(1A)---Supreme Court Rules, 1980, O. IV, R. 6---Federal Government, Provincial Governments and Ministries---Engaging private counsels to plead and conduct cases---Permissibility and legality---Counsel or the applicants argued that in light of judgment of the Supreme Court reported as Rasheed Ahmad v. Federation of Pakistan through Secretary Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad, etc. (PLD 2017 SC 121) the Federation as well as Ministries cannot engage a private counsel, and simultaneously the Provincial Government also cannot engage a private counsel as in the matter in hand a private counsel had been engaged and appeals had been filed through them---Validity---In the judgment referred there was no closure of door for engaging a private counsel, as there was a way mentioned in the said judgment for engaging a private counsel---Furthermore after insertion of Rule 14(1A) in the Rules of Business, 1973 ( the Rules ), the power to engage a private counsel by a Division had been enhanced, though the Division was bound to follow the procedure provided under Rule 14(1A)---Attorney General for Pakistan ( AGP ) apprised the Supreme Court with the record whereby the procedure had been adopted and complied with and the AGP also stated that there was no defect in engaging a private counsel---Supreme Court went through the case record cited by the AGP and found that the procedure provided in the Rules had been complied with---For filing a petition or an appeal before the Supreme Court the procedure for filing of an appeal is provided under Supreme Court Rules, 1980 and that is primarily filed through an Advocate-on-Record ( AOR )---In present appeals the AOR had been appointed by the concerned Division in accordance with the Rules, therefore, there was no defect in filing the same---Present appeals had been filed correctly through AOR and AOR could instruct the counsel to appear---Applications were dismissed.
• ----R. 14 (1A)---Supreme Court Rules, 1980, O.IV, Rr. 6, 15 & Sixth Sched., Form No. 5---Federal Government, Provincial Governments and Ministries---Engaging private counsels to plead and conduct cases---Permissibility and legality---Compelling reasons for engaging private counsels in the public interest---Counsel or the applicants argued that in light of judgment of the Supreme Court reported as Rasheed Ahmad v. Federation of Pakistan through Secretary Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad, etc. (PLD 2017 SC 121) the Federation as well as Ministries cannot engage a private counsel, and simultaneously the Provincial Government also cannot engage a private counsel as in the matter in hand a private counsel had been engaged and appeals had been filed through them---Validity---Several petitions were filed in the Supreme Court under Article 184(3) of the Constitution, challenging the lawfulness of sections 2(1)(d)(i) & (ii) and section 59(4) of the Pakistan Army Act, 1952---Federation of Pakistan was arrayed as one of the respondents in these petitions through various Ministries such as Defence, Interior, Law and Justice, etc.---Province of Balochistan was also a respondent in some petitions---After these petitions were allowed, intra-court appeals were filed under section 5 of the Supreme Court (Practice and Procedure) Act, 2023---Rule 15 of Order IV of the Supreme Court Rules, 1980 says that no Advocate other than an Advocate-on-Record is entitled to act for a party in any proceeding in the Supreme Court---For this reason, in the cases at hand, the Government had engaged Advocates-on-Record, and the applicants had not questioned their appointments and their right to act for the Government---Rule 6 of Order IV of the Supreme Court Rules, 1980 enacts that no Advocate other than an Advocate-on-Record shall appear or plead in any matter before the Supreme Court unless an Advocate-on-Record instructs him---In line with this rule, Form No.5 of Sixth Schedule to the Supreme Court Rules, 1980 provides a specimen of the Power of Attorney to Advocate-on-Record, which, among other things, gives power to an Advocate-on-Record to appoint and instruct counsel ---So viewed, it was under this power that the Advocate-on-Record appointed and instructed private counsel to argue the matter on behalf of the Government---Substantive questions involved in the present appeals were out of the ordinary, with broad implications that would significantly impact the lives and liberties of citizens---These questions partake of the colour of criminal, constitutional and international human rights---Standing at the rostrum in the courtroom, the Attorney General for Pakistan (AGP) stated that although he was conversant with criminal law, he lacked that much expertise which required to address the complex questions of criminal law so raised in present appeals, and therefore, being compelled, private counsels had been engaged to render comprehensive and effective assistance to the Supreme Court in the public interest---Attorney General s honesty and sincerity in admitting his limitations was to be appreciated and his statement showed that he was a thorough professional---Thus, the engagement of private counsel was not for any improper motive---Furthermore, the scope of appeal under section 5 of the Supreme Court (Practice and Procedure) Act, 2023, was also to be settled, and since all the questions raised in present appeals had never been brought before the Supreme Court for consideration, they ought to be discussed extensively to arrive at a sagacious answer---Such a situation constituted a "compelling reason" within the contemplation of Rule 14(1-A) of the Rules of Business, 1973, for engaging private counsel---It also met the test set out in the case reported as Rasheed Ahmad v. Federation of Pakistan through Secretary Ministry of Information, Broadcasting and National Heritage, Government of Pakistan Islamabad, etc. (PLD 2017 SC 121) for engaging private counsel, which held that the engagement of a private counsel could only be sanctioned for compelling reasons and in the public interest and not to protect or save a particular individual or for any other ulterior reason---In the present case there had been no departure from the procedure for engaging private counsel---Private counsel, given the circumstances, could not be restrained from pleading the cause of the Government---Applications were dismissed accordingly.
• Faisal Siddiqui, Advocate Supreme Court for Applicants (in both C.M.As.).
• "No Advocate other than an Advocate-on-Record shall appear or plead in any matter unless he is instructed by an Advocate-on-Record."
• 3. Be it noted in the beginning that the Federal Government's approach of allowing Ministries to file separate appeals was imprudent. One consolidated appeal was sufficient. Since we are not concerned here with the maintainability of multiple appeals, we will focus on the question that comes up for our determination: whether private counsel can be restrained from pleading on behalf of the Government, given the circumstances. This question makes it necessary to review the scheme of law governing the legal practice of Advocates before this Court. It must be remembered that the license to practice law confers twofold rights on an Advocate: the "right to act" and the "right to plead." The "right to act" refers to taking steps to lay the case before the Court, for instance, making an application or presenting a petition or appeal. No Advocate can exercise this right for any person unless he has been appointed by a document in writing signed by such person or his authorised agent or some other person duly authorized by him to make such appointment, and such document has been filed in the Registry2. A document appointing an Advocate to act on behalf of any person is called Wakalatnama (power of attorney). Rule 15 of Order IV of the Supreme Court Rules, 1980 says that no Advocate other than an Advocate-on-Record is entitled to act for a party in any proceeding in the Supreme Court. For this reason, in the cases at hand, the Government has engaged Advocates-on-Record, and the applicants have not questioned their appointments and their right to act for the Government, so there is no need to dilate further on this aspect. Given the facts, the filing of appeals on behalf of the Government cannot be held invalid.
• H 4. The "right to plead", as it suggests, is a right by which an Advocate appears before the Court to present and argue a position on behalf of a person or party. Rule 6 of Order IV of the Supreme Court Rules, 1980 enacts that no Advocate other than an Advocate-on-Record shall appear or plead in any matter before this Court unless an Advocate-on-Record instructs him. In line with this rule, Form No.5 of Sixth Schedule to the Supreme Court Rules, 1980 provides a specimen of the Power of Attorney to Advocate-on-Record, which, among other things, gives power to an Advocate-on-Record "to appoint and instruct counsel". So viewed, it is under this power the Advocate-on-Record has appointed and instructed private counsel to argue the matter on behalf of the Government. Here, the applicants' objection needs consideration: when a competent and proficient Attorney General and his team were available to the Government, why were private counsel instructed to plead the Government's stance? The applicants sought strength in their argument from Rasheed Ahmad's case (supra). This objection might have been weighty if it had been a case of a particular individual involving a simple question of law. On the contrary, the substantive questions involved in the appeals are out of the ordinary, with broad implications that will significantly impact the lives and liberties of citizens. These questions partake of the colour of criminal, constitutional and international human rights. Standing at the rostrum in the courtroom, the Attorney General stated that although he was conversant with criminal law, he lacked that much expertise which/required to address the complex questions of criminal law so raised in appeals, and therefore, being compelled, private counsels have been engaged to render comprehensive and effective assistance to this Court in the public interest. The Attorney General's honesty and sincerity in admitting his limitations are appreciated. His statement shows that he is a thorough professional and leads us to conclude that the engagement of private counsel was not for any improper motive. What's more, it is to be noted that the scope of appeal under section 5 of the Supreme Court (Practice and Procedure) Act, 2023, is also to be settled, and since all the questions raised in the appeals have never been brought before this Court for consideration, they ought to be discussed extensively to arrive at a sagacious answer. In my opinion, such a situation constitutes a "compelling reason" within the contemplation of Rule 14(1-A) of the Rules of Business, 1973, for engaging private counsel. It also meets the test set out in Rasheed Ahmed's case for engaging private counsel, which held that the engagement of a private counsel could only be sanctioned for compelling reasons and in the public interest and not to protect or save a particular individual or for any other ulterior reason. It has been brought to our notice that there has been no departure from the procedure for engaging private counsel. So, we find that the applicants' objection does not hold water. As a result, we conclude that private counsel, given the circumstances, cannot be restrained from pleading the cause of the Government.

Headnotes / Summary

Judgment & Decree