1999 PLP 1533 (CLC)

4. That as the petitioner had to go abroad, he requested the District Judge, Gujranwala, to decide his application. The application was heard on 30‑5‑1985 and the judgment was reserved. That on the day when he addressed arguments, nothing untowards happened. In this connection, he referred to the order sheet and stated that nothing was indicated there as well. That he heard about the result of his application and he was told that it had been sent to another Civil Judge.

5. That when the petitioner obtained a copy of the transfer order, he found some remarks against him. These remarks he had reflected in extenso in the revision petition itself and these were:‑‑

.... conduct of the counsel for the petitioners was not proper even in this Court but for justice sake, the suit is withdrawn from the Court of Senior Civil Judge, Gujranwala."

6. These remarks caused him grievance and he moved this revision petition asking that the remarks be expunged as these were totally groundless.

7. According to the petitioner, no such remarks were ever reflected in the order sheet about his conduct and the remarks were, therefore, uncalled, for, and were an adverse imputation against him as an officer of the Court. That the allegation of "improper conduct" was of a very grave consequence and was to affect his practice and his status as a Member of the Punjab Bar Council. That before passing such remarks, he was not heard.

8. No one represents the District Judge, Gujranwala.

9. Certified copy of the order of the learned District Judge, dated 30‑5‑1985 reflects what has been said above with respect to the conduct of the Counsel i.e. present petitioner.

10. The learned District Judge did not mention even by way of an illustration as to what misconduct had been committed. The petitioner is right when he says that no remarks about his misconduct was ever reflected by the Courts below in their order sheets. Anyway, if there was any misconduct before the Court, it was the duty of the Court to have written the facts of the misconduct on its face for anyone, to judge the misconduct, keeping this fact in a state of enigma was unfair to the petitioner. As a respectable Member of the Bar, he became concerned about these remarks which ordinarily would escape the notice of many persons.

11. Having not given the facts of misconduct, the learned District Judge kept to himself what may have transpired before him. Therefore, the writing of these remarks were based on a subjective approach of the District Judge and was an arbitrary conclusion. Such conclusions without the facts and reason cannot sustain in the eye of law.

12. Two important principles seems to have been ignored in this case. The first is a principle we hold so dear in our quest for justice under rule of law and this is embodied in the maxim "audi alteram partem" No one should be condemned unheard. The second is of fairness. In the famous case of Dr. Bentley Fortescue, J. in R. v. Chancellor University of Cambridge 1 Sir 537 had observed:‑

"

67. Besides, the objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof commanded thee, that thou shouldst not eat: And the same question was put to Eva also. "

13. Prophet of Islam (p.b.u.h.) wanted to appoint Hazrat Ali as the Qazi of Yaman. Hazrat Ali, the learned and the brave reluctantly accepted the command. When he was about to leave he was called back and told that before giving any opinion on a matter he should ensure that he hears the other side.

14. This maxim is derived from natural justice which should mean the natural sense of what is right and wrong. As a matter of fact the rules of natural justice were used since remote antiquity. By the Kings and the Judges who before the judicial or municipal laws were made decided cases according to natural equity based on natural law and justice. Understanding the law of nature should not be difficult. Because it is that law which God at the time of creation of the nature of man infused into his heart, for his preservation and direction and this was called "lex aeterna", the moral law, also called the law of nature.

15. Way back in 1608 in the famous Calvins case it was said that "lex aeterna" was the law written with the fingers of God in the heart of man and by this law were the people of God a long time governed, before the law was written by Moses, who was the first reporter or writer of law in the world. We here are both Courts of law and equity. Natural justice and equity means the same thing i.e. the natural law. In the case Forbes v. Cochrane (1824) 2 B. & C. 448, 471 Best, J. observed:‑‑ "The proceedings in our Courts are founded upon the law of England and that law is again founded upon the law of nature and the revealed law of God. If the right sought to be enforced is inconsistent with either of these the English Municipal Courts cannot recognise it."

16. Our present system of administration of justice is based on plural legal philosophy. On the English common law the Anglo Saxon Corpus Juris and the Islamic jurisprudence. Both going side by side. In fact Pakistan has become a laboratory where the principles of both these legal philosophies are being tested. So far we have achieved harmony. Both the Philosophies teach us to obey the ` laws of God.

17. A reference in this connection may be made to Sura Humaza (C IV) (Holy Qur'an) which prohibits back‑biting and obviously when some thing is said against the back of somebody without him having the opportunity of explaining, this amounts to back‑biting. So, fairness demands that everything should be laid open and opportunities provided for contradiction.

17. It was said by Bowen, J. in the case Leeson v. General Council of Medical Education etc. (1889) 43 Ch. D. 336, 385:

18. The superior Courts in Pakistan have placed great emphasis on the observation of the rules of natural justice. And all subordinate Courts are bound to follow these.

19. Under the circumstances, this Court has no hesitation in expunging the remarks in question: " .... Conduct of the counsel for the petitioners was not proper even in this Court." reflected in the order of the learned District Judge, dated 30‑5‑1985. These are expunged. The revision petition is, thus, accepted with no order as to costs. M.B.A./A‑99/L Petition accepted.