2004 PLP 184 (YLR)

Representation

• Umar Mehmood Kasuri, Advocate for Appellants.
• Ch. Muhammad Afzal, Advocate for Respondents.
• Date of hearing: 1st July, 2003.
• ‑‑‑‑S.24‑‑‑Advocate of Supreme Court of Pakistan can appear and practise law in Courts of Azad Jammu and Kashmir.
• ‑‑‑‑S.42(5)‑‑‑Azad Jammu and Kashmir Supreme Court Rules, O. IV, R.4‑‑ Enrolment of an Advocate from Pakistan to practise law in Supreme Court of Azad Jammu and Kashmir‑‑‑Scope‑‑‑Under S.42(5)(b) of Azad Jammu and Kashmir Interim Constitution Act, 1974, a person from Pakistan can be appointed as Judge of Supreme Court of Azad Jammu and Kashmir provided he fulfils necessary qualifications; on same analogy, a person from Pakistan can be enrolled as an Advocate of Supreme Court of Azad Jammu and Kashmir.
• MUHAMMAD YUNUS SURAKHVI, C.J.‑‑‑The above titled four appeals have been filed by Mr. Umar Mehmood Kasuri, an advocate from Pakistan, who has been appearing in the High Court of Azad Jammu and Kashmir as well as in this Court since May, 1990. In these appeals when he submitted concise statements, Ch. Muhammad Afzal, the learned counsel for the respondents, in para. No.5 of his concise statements raised a preliminary objection in all the appeals which reads as follows:‑‑
• (8) Undertaking dated 22‑5‑1990 by Mr. Umar Mehmood Kasuri, Advocate, Annexure R/8.
• (9) Certificate of Enrolment of advocate by Supreme Court of AJ&K dated 19‑5‑1990, Annexure R/9.
• 3. Mr. Umar Mehmood Kasuri, the learned counsel for the appellants, was provided with the opportunity to reply the averments made in the concise statements as well as in the application. In his objections, he stated that the application is malicious, defamatory and embarrassing. The learned counsel stated that the allegation that "appellant's counsel does not have any licence of Supreme Court" stands negated by the fact that the respondents themselves placed on record the copy of licence issued by this Court in favour of appellant's counsel. The learned counsel in his objections stated that the allegation that counsel for appellants is a non‑State. Subject and hence cannot hold valid legal licence to practise in Azad Jammu and Kashmir is preposterous which does not merit any comment. The learned counsel for the appellants averred in his objections that the Assistant Registrar of this Court on his application for enrolment as an Advocate of Supreme Court on 20‑1‑1990 asked him for filing of Enrolment Certificate of the High Court of Pakistan or a certificate to the effect that he is a fit person to be enrolled as an, Advocate of the Supreme Court. Accordingly the following documents were submitted by Mr. Umar Mehmood Kasuri alongwith his objections:‑‑
• (a) Certified copy of certificate issued by Punjab Bar Council dated 16‑1‑1990 Annexure DA/3, wherein it has been mentioned that Mr. Umar Mehmood Kasuri has been admitted as an Advocate of the High Court on 20‑9-1966.
• (b) Certified copy of Certificate issued by Pakistan Bar Council Annexure DA/1 showing that Mr. Umar Mehmood Kasuri, son of Mian Mehmood Ali Kasuri, resident of 4‑Fane Road, Lahore, being an Advocate, who satisfies all the conditions laid down by Rules framed by the Supreme Court of Pakistan, has on this the 3rd day of June, 1982 been admitted and enrolled as an Advocate of the Supreme Court of Pakistan.
• (c) Certified copy of Certificate issued by Secretary, Pakistan Bar Council dated 10th April, 1990, Annexure DA/2, stating therein that Mr. Umar Mehmood Kasuri, resident of 4‑Fane Road, Lahore, was enrolled as an Advocate of the Supreme Court of Pakistan on 3‑6‑1982 by Pakistan Bar Council. His name is still borne on the Roll of Advocacy maintained by this Council.
• 4. Ch. Muhammad Afzal, the learned counsel for the respondents, while relying upon his preliminary objection referred to document Annexure R/2 produced by him wherein the Assistant Registrar informed Mr. Umar Mehmood Kasuri that he has enclosed the photostat copy of Certificate issued by the Punjab Bar Council, Lahore. The Assistant Registrar stated in the order that Mr. Umar Mehmood Kasuri has also filed undertaking and Indemnity Bond as required under Order IV of the Supreme Court Rules. It was also stated that the photostat copies are not attested copies. At the end of the order, it was demanded by the Assistant Registrar that for enrolment as an Advocate of the Supreme Court, the Advocate should have filed the Enrolment Certificate of the High Court .of Pakistan or a certificate to the effect that he is a fit, person to be enrolled as an Advocate of the Supreme Court. He was directed to file these documents. While referring to Annexure R/4, the learned counsel submitted that the Assistant Registrar of this Court observed that Mr. Umar Mehmood Kasuri has not filed the Certificate of Enrolment as an Advocate of Supreme Court of Pakistan or a certificate to the effect that he is a fit person to be enrolled as an Advocate of the Supreme Court. Again on 10‑5‑1990 vide Annexure R/5, the Deputy Registrar observed that Mr. Umar Mehmood Kasuri has not filed the requisite documents and asked that the application alongwith the documents filed by him be transmitted to Muzaffarabad for further action. Vide Annexure R/6 the Superintendent of the Office submitted a report to the Registrar that on 20‑1‑1990 Mr. Umar Mehmood Kasuri has submitted an application for enrolment as an Advocate of the Supreme Court of Azad Jammu and Kashmir in the Branch Registry, Mirpur. He has also filed a photostat copy of a certificate issued by the Punjab Bar Council Lahore which shows that he is enrolled as an Advocate of the High Court and also filed an undertaking as well as an Indemnity Bond as required under Order IV of the Supreme Court Rules. Vide Annexure R/7 the Superintendent of the Office reported that Mr. Umar Mehmood Kasuri has filed the following documents alongwith his application:‑‑
• The aforesaid report was submitted by the Superintendent on 19‑5‑1990 to the Registrar of this Court; thereafter vide Annexure R/8 Mr. Umar Mehmood Kasuri filed an undertaking as required under the Supreme Court Rules. Vide Annexure R/9, a certificate of Enrolment of Advocate of Supreme Court of Azad Jammu and Kashmir was issued in favour of Mr. Umar Mehmood Kasuri on 19th day of May, 1990, by the Registrar of this Court.
• 5. While arguing the case, Ch. Muhammad Afzal, the learned counsel for respondents, submitted that under the Supreme Court Rules all the conditions mentioned in Order IV, rule 4, sub- rule (1), clauses (a) to (c) and sub‑rule (2) of rule 4 of Order IV are necessarily to be fulfilled by a person desirous of getting licence of advocacy of Supreme Court of Azad Jammu and Kashmir. The learned counsel contended that under Order IV, rule 4, sub‑rule (1), clause (a) of the Supreme Court Rules it is a necessary requirement that a person to become an Advocate of Supreme Court of Azad Jammu and Kashmir must have been for not less than five years enrolled as an Advocate of the High Court. Similarly unless under Order IV, rule 4, sub‑rule (1), clause (b) he has been granted a certificate in a duly authenticated form by the Chief Justice and Judge of the High Court that he is a fit and proper person to appear and plead as an Advocate before the Supreme Court, he shall not be qualified for being enrolled as an Advocate of this Court. The learned counsel contended that under Order 1, rule 2 of the Supreme Court Rules, the High Court has been defined in a following manner:‑‑
• Therefore, while interpreting the provisions of, Order IV, rule 4, sub -rule (1), clauses (a) and (b) of the Supreme Court Rules, wherever the word `High Court' occurs, it only refers to the High Court of Azad Jammu and Kashmir and not any other High Court. Thus, the learned counsel submitted that the counsel for the appellants not being the Advocate of the High Court of Azad Jammu and Kashmir is not eligible to get the licence of advocacy of Supreme Court of Azad Jammu and Kashmir, as such all the appeals filed in his capacity as an Advocate of the Supreme Court of Azad Jammu and Kashmir are incompetent and the same are not instituted validly.
• 6. While rebutting the arguments of Ch. Muhammad Afzal, Mr. Umar' Mehmood Kasuri, the learned counsel for the appellants, submitted that under Order IV, rule 5 of the Supreme Court Rules the Chief Justice and the Judge have vast powers to grant licence to any person who is not qualified to be enrolled under Order IV, Rules 1 to 4, if in their judgment he is qualified by knowledge, ability and experience to be enrolled as an. Advocate. The learned counsel submitted that Order IV, rule 5 of the Supreme Court Rules reads as follows:‑‑
• "The Chief Justice and the Judge may grant the enrolment of person, not qualified as aforementioned, if in their judgment he is qualified by knowledge, ability and experience to be enrolled as an Advocate."
• This shows beyond any manner of doubt that rule 5 of Order IV controls the provisions of Order IV, rules 1 to 4. The learned counsel further submitted that in 1995 an enactment in the shape of Azad Jammu and Kashmir Legal Practitioners and Bar Councils Act, 1995, was introduced in Azad Jammu and Kashmir under which only a State Subject alongwith other qualifications could be enrolled as an Advocate of the Supreme Court of Azad Jammu and Kashmir but safeguard has been provided for the Advocates who have already been enrolled before the commencement of the aforesaid Act. In this regard he referred to section 21 bf the said Act. The learned counsel also pointed out that section 24 of the AJ&K Legal Practitioners and Bar Councils Act, 1995 provides that Advocates of other country are allowed to practise in the territory of Azad Jammu and Kashmir provided the Advocates from. Azad Jammu and Kashmir are permitted to practise law in that country. This shows that even in the latest Legal Practitioners Act, the arrangements had been made for allowing the Advocates of Azad Jammu and Kashmir to practise in Pakistan and the Advocates of Pakistan to practise in Azad Jammu and Kashmir on the basis of reciprocity.
• "4. (1) A person shall not be qualified for being enrolled as an Advocate unless he‑‑‑
• (a) has been for not less than 5 years enrolled as an Advocate in High Court;
• (b) has been granted a certificate in a duly authenticated form by the Chief Justice and Judge of the High Court that he is a fit and proper person to appear and plead as an Advocate before the Supreme Court; and
• (c) signs the Roll of Advocates maintained for the purpose."
• On the basis of aforementioned provisions of Order IV of the Supreme Court Rules, Ch. Muhammad Afzal, the learned counsel for the respondents, contended that for enrolment as an Advocate of the Supreme Court of Azad Jammu and Kashmir it is the condition precedent that a person must have not less than five years been enrolled as an Advocate of the High Court. The High Court, according to the learned counsel for the respondents, under Order 1, rule 2 of the Supreme Court Rules has been defined as the High Court of Azad Jammu and Kashmir. So, according to the learned cou0sel for the respondents, a person who does not hold a licence of advocacy of the High Court of Azad Jammu and Kashmir and has not less than five years been enrolled as an. Advocate of the High Court, cannot be enrolled as an Advocate of the Supreme Court of Azad Jammu and Kashmir. Under section 43 of the Constitution, the High Court has been defined‑ as follows:‑‑
• 9. The contention of the learned counsel for the respondents that an Advocate from Supreme Court of Pakistan cannot appear and practise law in the Courts of Azad Jammu and Kashmir, in our considered view, is devoid of any legal force and has no footing to stand upon. We need not refer to the Legal Practitioners Rules, 1957 and the Legal Practitioners Acts even before 1957 or Bar Councils Act, 1995 as they have no application in the instant case. In the instant case the relevant licence was issued in 1990, therefore, the law applicable at that time was provided in the Supreme Court Rules which we have already referred. Mr. Umar Mehmood Kasuri applied for this enrolment as an Advocate of the Supreme Court of Azad Jammu and Kashmir in the year 1990 when the Constitution was in the field. So obviously the provisions of the Constitution and the Rules made thereunder, as contended by Ch. Muhammad Afzal, the learned counsel for the respondents, shall prevail upon the subordinate legislation.
• 11. Section 42, subsection (5) of the Constitution refers to the qualifications of a person who can be a Judge of the Supreme Court of Azad Jammu and Kashmir. Under clause (b), explanation of subsection (5) of section 42 of the Constitution, a person from Pakistan can be appointed a Judge of Supreme Court of Azad Jammu anal Kashmir provided he fulfils the necessary qualifications. It seems ridiculous that if a person from Pakistan can be appointed a Judge of the Supreme Court of Azad Jammu and Kashmir, provided he fulfils the necessary qualifications, then why he cannot be enrolled as an Advocate of the Supreme Court of Azad Jammu and Kashmir.

Headnotes / Summary

Judgment & Decree