P L D 1994 Lahore 183 (PLP)

M. MAHBOOB AHMAD, CJ. ‑‑‑This appeal under Section 3 of the Law Reforms Ordinance, 1972, arises out of a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed by the appellant in which he challenged the appointment of Mr. Farhat Ali Khan, respondent No.l, as a Member and Chairman of the Income Tax Appellate Tribunal and sought a direction in the nature of quo warranto, calling upon him to show under what authority of law he holds the office of Judicial Member of the Income Tax Appellate Tribunal and the office of the Chairman of the said Tribunal. The learned Single Judge dismissed the Constitutional petition on the sole ground that it has been riled after undue delay and suffered from laches.

2. During the course of hearing of this appeal, respondent No.2 was directed to submit its report and parawise comments to the Constitutional petition, which have since been filed. Both the respondents have also submitted their written statements.

3. There is no dispute as regards the law applicable and also on certain factual aspects. It is common ground between the parties and is indeed so provided by Section 133(3) of the Income Tax Ordinance, 1979 that a Judicial Member of the Tribunal has to be a person, who has either been a District Judge qualified to be appointed as a Judge of a High Court or a person, who is or has been an Advocate of a High Court and is qualified to be a Judge of a High Court.

4. In the written a statement submitted by respondent No.l, it has been stated that he was qualified to be appointed as a Member of the Income Tax Appellate Tribunal as he was enrolled as an Advocate in the High Court of Sindh and Balochistan on 21‑3‑1971, that is for a period of more than 10 years.

5. In reply, learned counsel for the appellant, has submitted that according to the admitted facts, respondent No.l had ceased to be an Advocate on 12‑8‑1974 when he went to Uganda and joined service, from where he returned in February, 1982. According to the learned counsel, if the period, during which respondent No.l remained in service in Uganda, was excluded, he could not claim that he was an Advocate of not less than 10 years standing at the time of his appointment as a Judicial Member of the Income Tax Appellate Tribunal.

6. Sub‑Article (2) of Article 193 of the Constitution of Islamic Republic of Pakistan, 1973, which deals with the qualification of a person to be appointed as a Judge of a High Court, reads as under:‑‑ "A person shall not be appointed as a Judge of High Court unless he is a citizen of Pakistan, is not less than forty years of age, and‑ -- (a) he has for a period of, or for periods aggregating, not less than ten years been, an Advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or (b) he is, and has for a period of not less than ten years been, a member of civil service prescribed by law for purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or (c) he has, for a period of not less than ten years, held, a judicial office in Pakistan."

7. There is no dispute that respondent No.l was enrolled as an Advocate of the High‑ Court of Sindh and Balochistan on 21‑3‑1971. It is also not disputed that on 12‑8‑1974, respondent No.l went to Uganda and joined service first as a Chief Magistrate and then as Legal Adviser to the United Commercial Bank and remained posted there till 30‑5‑1979. Again he joined service as a Judge of the High Court of Uganda on 10‑10‑1979 and held that office till 10‑2‑1982. The question, therefore, that emerges for consideration is as to whether respondent No.l can legitimately claim in the attendant circumstances that he had remained as an Advocate during the period he was in service in Uganda.

8. After having given anxious consideration to the matter, we are clearly of the view that answer to this question has to be in the negative. The only reason advanced by the learned counsel for the respondent in support of the assertion that he had been an Advocate of 10 years standing was that respondent No.1 continued to remain as an Advocate even during the period of his service in Uganda, as during that period, his name had remained on the rolls of the Bar Council as an advocate. We are unable to accept this argument which on the face of it is fallacious. There is no warrant for the claim that even during the period respondent No.l was in service in Uganda, he continued to remain as an Advocate of the High Court of Sindh and Balochistan.

9. Such an interpretation is not only contrary to the letter. but also the spirit of sub‑Article (2) of Article 193 of the Constitution of Islamic Republic of Pakistan, 1973, which requires that a person must have remained as an Advocate of the High Court for a period of not less than 10 years, which provision clearly contemplates that a person can be eligible for appointment as Judge of a High Court if he has been in the legal profession and practised as an advocate of a High Court. Own having joined service, he obviously gives up the practice and thus cannot claim that during the period of his employment, he remained as an advocate in the profession of law.

10. Advocate, in the common parlance, means a person who is engaged in practising the profession of law. If he ceases to be in the profession, how he I8 can claim to be an advocate merely for the reason that his name had remained on the rolls of the Bar Council. In the Law Lexicon of British India by P. Pramanatha Aiyar,1940 Edition, advocate has been defined as "one who pleads the cause of another in a Court of law, or other judicial tribunal. His duty is two‑fold‑‑‑to advise his client before going into Court, and to act for him when in the Court. He is a person learned in the law and duly admitted to practice, who assists his client with advice and pleads for him in open Court". We are, therefore, of the view that while computing period of 10 years in terms or clause (a) of sub‑Article (2) of Article 193 of the Constitution of Islamic Republic of Pakistan, 1973, the period during which respondent No.l had C remained in service in Uganda has to be excluded. There is thus no escape except to hold that respondent No.l was not qualified to be appointed as a Judge of a High Court and consequently not eligible for appointment as Member/ Chairman of Income Tax Appellate Tribunal.

11. As regards the ground which prevailed with the learned Single Judge for dismissing the Constitutional petition, suffice it to say that illegal occupation of the office is a recurring wrong and each day the office remains illegally occupied furnishes a fresh cause of action. The Constitutional petition. seeking a direction in the nature of quo warranto cannot be dismissed merely D on the ground of delay or laches. In view of what has been stated above, this appeal is allowed, the impugned order is set aside and it is held that respondent No.l was not qualified to be appointed us a Member/Chairman of the Income Tax Appellate Tribunal. He shall cease to hold that office forthwith. No order as to costs. AA./M‑1307/L Appeal accepted.