2015 PLP 976 (SCMR)

Laws Cited

Representation

• ----O. IV, R. 30---Constitution of Pakistan, Art. 184(3)---Suo motu jurisdiction of Supreme Court---Advocate of the Supreme Court as counsel of one of the parties---Apprehension of bias of a Judge of the Supreme Court by said counsel---Untrue and incorrect statements by the Advocate---False assertions---Misconduct---Conduct unbecoming of an Advocate of the Supreme Court---Issuance of notice to Advocate of the Supreme Court to show cause why action envisaged under O. IV, R. 30 of the Supreme Court Rules, 1980 (including suspension/removal from practice) be not taken against him---Advocate of the Supreme Court in question made untrue and incorrect statements in his concise statement filed before the Supreme Court regarding bias of one of the Judges of the Supreme Court hearing the suo motu case---Advocate in question made (untrue) statements to the effect that the Judge of the Supreme Court in question refused to accept his request for general adjournment; that the Supreme Court fixed a date of hearing for the case knowing that he was not available; that the Judge of the Supreme Court in question repeatedly threatened an officer of the Government to take action against his client otherwise the officer's service may be harmed and that his client had serious apprehension that the Judge of the Supreme Court in question had already made up his mind to decide the case against the client in the absence of its counsel---Case record and orders passed in the suo motu case so far showed that such statements made by the Advocate of the Supreme Court in question were false and incorrect, and he had no valid or relevant explanations to justify the same---Advocate of the Supreme Court in question had also addressed a letter/application to the Chief Justice of the Supreme Court, seeking a change of Bench hearing the suo motu case, wherein unprofessional and irresponsible assertions were made---Said letter/application was also published by the press in newspapers---Apprehensions of the advocate's client were also based on false assertions---No serious apprehension could be founded on the basis of a false assertion---Not every subjective opinion of a litigant could be given credence---No valid basis existed for apprehension of the client which was wholly unfounded considering that the applications filed on his behalf had been dealt with in the usual course and in the usual manner extending indulgence and accommodation to him and his counsel (Advocate of the Supreme Court in question)---Advocate of the Supreme Court in question was guilty of misconduct and conduct unbecoming of an advocate ---Dignity and high standing of the legal profession and of Judges and courts had to be defended for the sake of the independence of the Judiciary and Bar and for the effective administration of justice--- Such course had to be adopted, if necessary, especially in the face of misconduct or conduct which was unbecoming of an advocate---Such conduct must be curbed if the honour and dignity of the Bar and Bench were to be preserved---Supreme Court, therefore, issued notice to the Advocate of the Supreme Court in question to show cause why action envisaged under O. IV, R. 30 of the Supreme Court Rules, 1980 (including suspension/ removal from practice) be not taken against him---Order accordingly.
• Syed Zahid Hussain Bokhari, Advocate Supreme Court for Appellant (in C.M.A. 1532 of 2015).
• Date of hearing: 9th April, 2015.
• ----Professional duty of an advocate was that he was supposed to appear in court when a case was called.
• ----O. IV---Advocate-on-Record, duty of---Scope---Advocate-on-Record had to appear if the Advocate Supreme Court was unavailable and it was for the Advocate-on-Record to give intimation to the (Supreme) Court if adjournment had been granted to the counsel.
• ----O. IV---Advocate Supreme Court and Advocate-on-Record, absence of---Where Advocate Supreme Court and Advocate-on-Record were not present when the case was called it was for the (Supreme) Court to proceed in the matter or if considered appropriate, to adjourn the case.
• Gen. (R) Parvez Musharraf v. Nadeem Ahmed Advocate PLD 2014 SC 585 ref.
• Syed Ali Zafar, Advocate Supreme Court and Zahid Nawaz Cheema, Advocate Supreme Court for Bahria Town.
• JAWWAD S. KHAWAJA, J.---In our view, the following untrue statements have been made which are not only attributable to Mr. Ali Zafar, Advocate Supreme Court but are affirmed by his concise statement submitted and read out in Court and the same have not been explained by him. The concise statement is placed on record.
• "Mr. Gohar Ali Khan, Advocate Supreme Court who is representing Bahria Town (in HRC No.4729-P of 2011) has pointed out that Mr. Ali Zafar, Advocate Supreme Court is unavailable today because he is on general adjournment. We, however, do not appear to have any request for adjournment before us on his behalf. Then Mr. Gohar Ali Khan, Advocate Supreme Court clarified that Mr. Ali Zafar, Advocate Supreme Court is counsel in C.M.As. Nos. 3854 and 4341 of 2014 representing Bahria Town. As we do not have any adjournment request and nor has learned Advocate-on-Record appeared, we could have proceeded in the matter in the absence of Mr. Ali Zafar, Advocate Supreme Court, however, in order not to cause any prejudice to his client, let these C.M.As. come up on 31-3-2015". (emphasis added)
• "The order passed on 25-3-2015 shows that neither Mr. 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 Mr. 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 Mr. Ali Zafar would end. We, therefore, directed that in order not to prejudice the client of Mr. Ali Zafar, Advocate Supreme Court the case be adjourned to 31-3-2015". (emphasis added)
• 3. The above circumstances may be further confirmed and elaborated from the record. On 31-3-2015 we had asked Mr. Ali Zafar, Advocate Supreme Court to explain to us certain matters noted in the said order which prima facie, showed that he may have been guilty of misconduct or of conduct unbecoming of an Advocate of this Court. This order is to be read along with our order of 31-3-2015, wherein we asked him to submit his explanation.
• 4. Mr. Ali Zafar, Advocate Supreme Court has yesterday filed a concise statement (brought on record) setting out his explanation which he affirmed by reading it in Court. The same is being taken and considered below. He has firstly referred to the fact that he had been granted general adjournment by Hon'ble the Chief Justice from 24-3-2015 to 1-4-2015 and that intimation of the general adjournment had been given to him by the office vide letter dated 18-3-2015. The fact that the learned counsel had been granted general adjournment from 24-3-2015 to 1-4-2015 or that the said adjournment was communicated to him on 18-3-2015 need not be disputed as the same have no relevance to the contents of our order dated 31-3-2015 and the explanations sought therein.
• 5. It has next been stated that the Court was "duly informed by Mr. Aitzaz Ahsan Senior Advocate Supreme Court that Mr. Ali Zafar Advocate Supreme Court who is out of the country has told him that he is on general adjournment". Again there is no dispute Mr. Aitzaz Ahsan not once but repeatedly informed the Bench that Mr. Ali Zafar had been granted general adjournment and also emphasized that Mr. Ali Zafar had addressed a letter/application to Hon'ble the Chief Justice, seeking change of Bench. The relevant fact, however, is that there is no valid explanation tendered by Mr. Ali Zafar, Advocate Supreme Court in respect of the matters noted in our order of 31-3-2015.
• 7. In the concise statement once again it has been stated that "notwithstanding repeated information provided by Hon'ble members of the Bar about the general adjournment granted to Mr. Ali Zafar the case was taken up on both occasions in the absence of Bahria Town" i.e. on 25-3-2015 and 31-3-2015. The implication of this averment is as if the Bench had done something extraordinary and unusual. It may be mentioned that when the case was taken up on 25-3-2015 nobody appeared for Bahria Town in C.M.As. 3854 and 4341 of 2014 although Raja Abdul Ghafoor was Advocate-on-Record and Mr. Ali Zafar was Advocate Supreme Court in the said matters. Only Mr. Gohar Ali Khan Advocate Supreme Court appeared in H.R.C. No.4729-P of 2011 in which he was representing Bahria Town. Mr. Gohar Ali Khan had also informed the Bench that he was not representing Bahria Town in C.M.As. 3654 and 4341 of 2014 and that Mr. Ali Zafar was counsel for Bahria Town in the said matters. Mr. Gohar Ali Khan did not inform the Bench as to when the general adjournment of Mr. Ali Zafar was to end. The professional duty of an Advocate is that he is supposed to appear in Court when a case is called. On 25-3-2015 Mr. Ali Zafar may have been unavailable but even Raja Abdul Ghafoor Advocate-on-Record was not present to give any information to the Court. It is in these circumstances that we noted in our order that "we could have proceeded in the matter in the absence of Mr. Ali Zafar, Advocate Supreme Court. However, in order not to cause prejudice to his client, let these C.M.As. come up on 31-3-2015". Here we may also point out that it is always for the Advocate-on-Record to appear if the Advocate Supreme Court is unavailable and it is for the Advocate-on-Record to give intimation to the Court if adjournment has been granted to counsel. It is established from the record that this has not happened. Yet this failing on the part of counsel/Advocate-on-Record is being portrayed as if the Court did something extraordinarily unusual, odd or abnormal. The explanation (if it can be called one) is devoid of merit and is thus rejected.
• 9. Mr. Ali Zafar, Advocate Supreme Court has also mentioned that "issuance of directions against the party to litigation without its lawyer is also against the principles of due process, fair trial and access to justice". We do not see how this general statement can be applied to the circumstances of the case, noted above. If Advocate Supreme Court and Advocate-on-Record are not present when the case is called it is for the Court to proceed in the matter or if considered appropriate, to adjourn the case as was done to accommodate Mr. Ali Zafar and his client Bahria Town.
• 10. Further statements have been made in the concise statement filed by Mr. Ali Zafar, which are inconsistent and contradictory and do not offer any valid explanation. The application filed in Court has been annexed to the concise statement. It has been signed by Raja Abdul Ghafoor Advocate-on-Record and purports to have been drawn and settled by Raja Abdul Khaliq Khan, Advocate Supreme Court for and on behalf of Mr. Ali Zafar. The office objections to the said application have also been filed. Additionally, the contents of the application to the Chief Justice and the application to the Court are acknowledged by Mr. Ali Zafar as being verbatim copies in all material particulars. Furthermore, the categorical and repeated statements made by Mr. Aitzaz Ahsan Senior Advocate Supreme Court in Court are clear that the letter addressed to Hon'ble the Chief Justice which appears to have found its way to the press was made out and printed on the letter head of Mandviwalla and Zafar Advocates (Mr. Ali Zafar's Law Firm) and was signed on behalf of Mr. Ali Zafar. The same is the position of the application filed by Mr. Ali Zafar a copy of which is appended with his concise statement. It reproduces scurrilous and false assertions which have been mentioned in para 8 of the aforesaid letter addressed to Hon'ble the Chief Justice and in the application. The application again has been signed "for and on behalf of Mr. Ali Zafar, Advocate Supreme Court" and also bears the signatures of Raja Abdul Ghafoor, Advocate-on-Record.
• 11. Coming next to the question of alleged bias of one of us (Jawwad S. Khawaja, J.) against Messrs Bahria Town, it has been explained by Mr. Ali Zafar that it is an apprehension of Malik Riaz Hussain, Chairman of Bahria Town. However, there is no valid basis for such apprehension which is wholly unfounded considering that the two matters (C.M.As. 3654 and 4341 of 2014) have been dealt with in the usual course and in the usual manner extending indulgence and accommodation to Mr. Ali Zafar and his client. Not every subjective opinion of a litigant can be given credence. It is for Advocates to inform their clients as to the legal position. The case law in our jurisdictions as well as in other common law jurisdictions is clear that the perception of bias should be reasonable and objective. In the case titled Gen. (R) Parvez Musharraf v. Nadeem Ahmed Advocate (PLD 2014 SC 585), it was observed that "Courts are required to proceed on the basis of objective/rational standards and not on the basis of unfounded subjective opinions or on the basis of assumed perceptions of bias which may border on paranoia." In any event, as noted above, even the subjective perception of bias is founded on false assumptions.
• 14. Since there is no valid explanation forthcoming from Mr. Ali Zafar, Advocate Supreme Court in respect of the issues which have been highlighted above and in our order of 31-3-2015, we are inclined to the view that Mr. Ali Zafar has been guilty of misconduct and conduct unbecoming of an Advocate. The dignity and high standing of the legal profession and of Judges and Courts has to be defended for the sake of the independence of the Judiciary and Bar and for the effective administration of justice. This has to be done, if necessary, especially in the face of misconduct or conduct which is unbecoming of an Advocate. Such conduct must be curbed if the honour and dignity of the Bar and Bench are to be preserved. We, therefore, issue notice to Mr. Ali Zafar to show cause why action envisaged under Order IV, Rule 30 of the Supreme Court Rules (including suspension/removal from practice) be not taken against him.

Headnotes / Summary

Judgment & Decree