1984 PLP 558 (CLC)

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976‑ ‑‑R. 3, cl. (m) (i) [as amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 1983], r. 3 (b) [Notification, dated 6th June, 1983].‑Pakistan Legal Practi tioners and Bar Councils Act (XXXV of 1973), Ss. 5 (4) & 55‑Provisional Constitution Order (1 of 1981), Art. 9 Addition made to r. 3 (m) (i) by Notification unauthorised being violative of provisions of S. 5 of Act‑Power to frame Rules to provide for manner in which election of members of bar council was to be held, cannot authorise Bar Council to add any qualification or disqualification to right of vote or to place any condition which may have effect of curbing said right or restrict ing exercise of right of franchise. (b) Pakistan Legal Practitioners and Bar Councils Rules, 1976‑ ‑‑R. 3, cl. (m) (i) [as amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 1983, r.3 (b) Notification dated 6th June. 1983]‑Pakistan Legal Practitioners and Bar Coun cils Act (XXXV of 1973), Ss. 5 (4), 55 & 34 (4)‑Provisional Constitution Order (1 of 1981), Art. 9‑Right of vote‑Condition of payment of dues‑Specific provision having been made for striking off name of Advocate from rolls of Advocates, exercise of right of vote, held, cannot be subjected to condition of payment of dues‑Such restriction can only be placed by intending statute itself and not by making any provision in Rules‑Power to frame Rules is restricted to making of provisions for providing machinery for and manner of holding election‑‑Power so vested cannot be exercised so as to take away right of vote granted by statute itself‑Amendment made to r. 3 (m) (i) of Rules 1976 by r. 3 (b) of Amendment Rules, 1983 being ultra vires, was ineffective in law. The additions of qualifications in definition of voter cannot fall within the rule‑making power of regulating the manner of holding the election and the addition made to rule 3 (m) (i) of Pakistan Legal Practitioners and Bar Councils Rules, 1976 is beyond the rule Making power, Under the statute, an Advocate entered ire the divisional roll has as many votes as are the number of members to be elected from the Division concerned. The exercise of the right of vote so conferred cannot be whittled down or subjected to any condition or restriction, except through the amendment of the statute itself. The Bar Council in exercise of the rule‑making power, held, cannot place restrictions or conditions on the right of vote or on the exercise of that right in exercise of its rule‑making power. From this it is not to be taken that the Presiding Officers cannot require the voters to produce the identity cards issued by the Provincial Bar Council for establishing identity at the time of polling. Mian Nisar Ahmad and Ch. Muhammad Farooq : Amicus curiae. Mr. Asif Akhtar, Advocate, a candidate in the forthcoming Punjab Bar Council election from Lahore Seat, and Mr. Ikhtisar Ahmad, whose name appears in the Electoral Roll publisbed by the Punjab Bar Council. have filed this constitution petition seeking a declaration that the import of the amendment introduced in clause (m) of rule 3 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, is not to deny the right of vote to the Advocates whose names appear in the Divisional Electoral Rolls published by the Returning Officer Punjab Bar Council, Lahore, on Ist October, 1983, provided their identification is not objected to. The petitioners have also prayed for issuance of other directions to the Returning Officer, respondent No. 3, in the following terms :‑ (i) to conduct the elections to the Provincial Bar Council for Punjab announced to be held on 30th November, 1983 in a manner that the insertion in the Rule impugned herein bad not been made at all in the relevant Rules ; (ii) to prohibit the respondent Returning Officer from preventing the petitioners or any other Advocate whose name is duly entered in any Roll under Act XXXV of 1973 from exercising their right to vote in the forthcoming elections or any other to be held thereafter ; (iii) to restrain the respondent Returning Officer from rejecting any nomination paper on the ground that the proposer in the pro forma of Nomination Papers submitted by him has not been able to supply the number of his identity card or of that of the candidate, nominated therein. The Pakistan Bar Council framed Rules known as "The Pakistan Legal Practitioners and Bar Councils Rules, 1976" in exercise of powers con ferred by section 55 of the Legal Practitioners and Bar Councils Act, 1973, Act (XXXV of 1973). Rule 3 (m) (i) as originally framed, reads as under :‑ Rule 3 (m) 'voter' means :‑‑ (i) in relation to election to a Provincial Bar Council, an Advocate whose name for the time being appears on the divisional roll." This Rule was amended vide Resolution, dated 5th of June, 1983, publish ed in the official Gazette dated 6th of June, 1983; and the amended Rule 3 (m) (i) as amended by Rule 3 (b) of the Pakistan Legal Practi tioners and Bar Councils (Amendment) Rules, 1983, reads as under :‑ "Rule 3 (m) 'voter' means :‑ (i) in relation to election to a Provincial Bar Council, an Advocate whose name for the time being appears on the divisional roll and to whom an identity card has been issued by a Provincial Bar Council and who is not in arrears of dues of the Provincial Bar Council for a period exceeding six months." The amendment, so introduced, has been assailed by arguing that sec tion 55 of the Act, which confers a Rule Making Power on the Pakistan Bar Council, is restricted to the manner of holding the elections and publication of results thereof and that this power cannot be exercised so as to subject the exercise of right of vote to any condition not con templated by the statute itself. It was argued that the grant of power to make rules for regulating the manner of holding the elections does not authorise the Pakistan Bar Council to impose such conditions which whittle down or affect the right of franchise granted by section 5 (4) of the Act.

2. Before taking note of the arguments advanced by the learned counsel for the respondent., it may be mentioned that the learned coun I1 for the petitioners did not press the third relief prayer' for i. e. the direction restraining the Returning Officer from rejecting any nomina tion paper due to non‑supply of number of the Identity Card, as none of the nomination papers filed was rejected on this account.

3. Mr. A. Karim Malik, Advocate, for the Pakistan Bar Council, respondent No. 1, argued that no new qualification or disqualification has been prescribed for a voter by amending rule 3 (m) (i) of the Rules and that the intention behind the amendment was to require a voter to establish his identity by producing the Identity Card issued to him by the respective Provincial Bar Councils as numerous complaints of bogus voting were lodged with the Provincial as well as the Pakistan Bar Council. He submitted that the intention was to curb the bogus voting in view of the past experience and the complaints and to equip the Presiding Officers to receive satisfaction as to the identity of the person presenting himself for receiving a ballot. He referred to rule 22 (i) of the rules as added by rule 7 of the Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 1.983. The newly‑added sub‑rule (I) reads as under :‑ "(I) The ballot paper for the election to a Member of a Provincial Bar Council shall be issued to the voter by the Polling Officer only against the production of an identity card issued to him by such Provincial Bar Council." Mr. Amanullah Khan Niazi, Chairman of the Executive Committee of the Punjab Bar Council submitted that on receiving such complaints that some persons were instituting and conducting cases in Courts impersonating as Advocates though they were neither qualified to be enrolled nor were ever enrolled as Advocates, and some others had indulged in bogus voting by impersonating as advocates, at the elections held by the Bar Associations and the Punjab Bar Council, the Bar Council added rule

5. II to the Punjab Legal Practitioners and Bar Councils Rules, 1974 framed in exercise of the powers conferred by section 56 of the Legal Practitioners and Bar Councils Act, 1973. Clause (xii) of rule

5. II of these Rules is as follows :‑ "Every lawyer while exercising his right of vote in election of the Bar Council/Bar Association shall produce on demand his identity card and the Presiding Officers shall refuse his participation in the elections on non‑production of the identity card." He submitted that the issuance of the identity card by the Bar Council and the provisions regarding production of identity card in order to establish the identity of the person presenting himself for voting was considered necessary to curb the malpractices and to maintain the dignity and the high traditions of the profession. He further submitted that in view of rule

5. II (xii) there was really no necessity of amending rule 3(m) (i) and adding sub‑rule (1) to rule 22 in the Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 1983 as far as the Advocates belonging to the Punjab Province are concerned. Lastly, he submitted that the petitioners in fact do not object to the production of the identity cards for the purposes of establishing the identity as the declaration sought for is that the import of the amendment introduced in clause (m) of rule 3 of the 1976 Rules is not to deny the right of vote of the enrolled Advocates, provided their identity is not objected to.

4. Mian Nisar Ahmad and Ch. Muhammad Farooq, Advocates, were asked to address this Court as amicus curiae. Both the learned counsel were of the view that the amendment introduced vide notification dated 6th June, 1983 in rule 3 (m) (i) of the Rules strictly speaking was not consistent with the provisions of section 5 of the Act as by exercising Rule Making Power, neither any qualification nor any disqualification can be added to the right of vote granted to an enrolled Advocate by section 5 of the Act nor the exercise of such right can be subjected to any condition not contemplated by the statute. Mian Nisar Ahmad expressed the view that rule 22 (1) of the Rules places an unwarranted condition on the exercise of right of vote and, as such, amendment made in rule 3 (m) (i) as well as rule 22 (I) added under the Notification, dated 6th June, 1983 are liable to be struck down as these are violative of the provisions of section

5. Ch. Muhammad Farooq, Advocate, was, however, of the view that rule 22 (I) is intra vires as it intended to equip the Presiding Officer to receive satisfaction as to the identity of the person presenting himself to receive a ballot paper and such a Rule could legitimately be framed in exercise of the powers conferred so as to regu late the manner in which the election is to be held.

5. I have given my anxious consideration to the respective arguments noted above. Before dealing with the merits of the con troversy, it may pertinent] be noted that production of identity card where the identity of a person presenting himself to receive a ballot is objected to, is not being disputed. The objection as to identity of a voter can admittedly be raised ether by the Presiding Officer or by the candidates or their agents. In view of the concession made it is neither open to the petitioners to challenge the provision made respecting production of identity card at time of polling by the Pakistan Bar Council or by the Provincial Bar Council in their respective Rules, nor the petitioners have specifically challenged rule 22 (1) added to the Rules through Notification, dated 6th June, 1983. Moreover, they have not challenged rule 5.11 added by the Punjab Bar Council to the Punjab Legal Practitioners and Bar Councils Rules, 1974, through Notification, dated 21st June, 1983. The validity of these rules cannot be examined by this Court in constitution; jurisdiction by raising these questions suo motu. Assuming that the question of vires of rule 22 (1) of the 1976 Rules can be raised, even then the examination of the said question would be of no utility as rule 5.11 of the Punjab Legal Practitioners and Bar Council Rules, 1974, providing that every Advocate while exercising the right of vote shall produce on demand the identity card etc. has not been challenged and the same will remain in the field. In these circum stances, the wires of rule 22 (1) of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, need not be gone into as it will be an exercise in futility.

6. Coming to the addition made to rule 3 (m) (i) vide Notification, dated 6th June, 1983, 1 have no hesitation in holding that the said addi tion is unauthorized being violative of the provisions of section 5 of the Act. My reasons for the aforesaid conclusion are that the power to frame Rules to provide for the manner in which the election of Members .f of Bar Council is to be held cannot authorise the Bar Council to add any qualification or disqualification to the right of vote or to place any condition which may have the effect of curbing the said right or restricting the exercise of the right of franchise. Section 5 (2‑A) of the Act provides that for the purpose of the election of the Members of a Provincial Bar Council from a District or Districts under sub section (2), the Advocates entered on the Divisional Roll of the Division, of which such District or Districts form part, shall consti tute electoral college. Subsection (4) of section 5 provides that at an election of the Members of Provincial Bar Council, an Advocate shall have as many votes as the number of Members to be elected from the Division concerned. The expression Advocate' is defined in section 2 (a) to mean "an Advocate entered in any roll under the provisions of the Act". The "Divisional Roll" according to section 2 (cc) means, "A roll of Advocates of the High Court or as the case may be a roll of Advocates practising in a Division prepared and maintained by a Provincial Bar Council under dais Act." The next relevant pro vision is contained in section 9 of the Act, which provides for the functions of the Provincial Bar Council. It is one of the functions of the Provincial Bar Council to admit persons as Advocates on its roll; to hold examinations for the purpose of admis sion ; to prepare and maintain a roll of such advocates of any Pro vince as well as of each Division and to remove Advocates from such roll. The provisions regarding right of Advocates to practice 'is given in section 22 whereas the provisions regarding admission and enrolment of Advocates of four classes are contained in sections 23, 24 and 25, and the qualifications for admission as Advocates of the four classes have been given in sections 26, 27 and 28, and the order in which the names are to be entered in the roll, is provided in section 35 of the Act. Reference may also be made to section 34 (4) of the Act which provides the procedure for striking off the name of an Advocate from the roll of Advocates on account of his failure to pay an instalment of fee or the annual fee payable. It is pertinent to note here that specific provision has been made for striking off the name of an Advocate from the rolls of Advocates and, as such; exercise of right of vote cannot be subjected to the condition of payment of the dues. Such a restric tion to the exercise of right of vote can only be placed by amending the; statute itself and surely by not making any such provision in the Rules as the power to frame the Rules is restricted to the :raking of provisions; for providing the machinery for and the: manner of holding the election. The power so vesting cannot be exercised so as to take away the right of vote granted by the statute itself. The impugned addition in the definition of "voter", namely, to whom an identity card has been issued, by the Provincial Bar Council and who is not in arrears of dues of the Provincial Bar Council for a period exceeding six months, has the effect of adding two qualifications it the case of voters for exercising the right of vote. The addition of these qualifications cannot fall within the Rule Making Power of regulating the manner of holding the election and the addition so made to rule 3 (m) (i) is beyond the Rule Making Power. Under the statute, an advocate entered in the Divisional Roll has as many votes as are the number of Members to be elected from the Division concerned. The exer cise of the right of vote so conferred cannot be whittled down or sub jected to any condition or restriction, except through the amendment of the statute itself. The Pakistan Bar Council in exercise of the Rule Making Power cannot place restrictions or conditions on the right of vote or on the exercise of that right in exercise of its Rule Making Power. From this it is not to be taken that the Presiding Officers cannot require the voters to produce the identity cards issued by the Provincial Bar Council for establishing identity at the time of Polling.

7. For the reasons recorded above, it is hereby declared that the amendment made to rule 3 (m) (i) of the rules by rule 3 (b) of the Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 1983, being ultra vires, is ineffective in law. As a natural conse quence of this declaration, the Returning Officer, respondent No. 3, is restrained from preventing the petitioners or any other Advocate, whose name is duly entered in any roll published on 1st October, 1983, from exercising their right to vote in the elections, on the basis of the amendment, hereunder declared invalid and ultra vires. The petition is, therefore, accepted in the terms noted above without any order as t costs. M. Y. H. Petition accepted.