P L D 1965 (W (PLP)

(a) Constitution of Pakistan (1962), [as amended], Arts. 98, 6 & 133 (3)‑Vires of enactment challenged‑Reliefs mentioned in Art. 98 not appropriate remedy‑Petitioner can claim relief by way of declaration that Fundamental Right conferred by Constitution is not affected by that particular enactment ‑High Court for purpose of granting or withholding such declaration competent to consider and give finding on question of vires of impugned enactment qua rights of petitioner. Mr. Fazlul Quader Chowdhry v. Mr. Muhammad Abdul Haque P L D 1963 S C 486 ref. (b) Bar Councils Act (XXXVIII of 1916), S. 10‑Legal Practitioner‑Cannot be removed from practice except on grounds enumerated in section‑Legal Practice (Disqualifications) Ordinance (II of 1964), S.

3. Section 10 (1) of the Bar Councils Act, 1926, lays down that the High Court may, in the manner provided, reprimand, suspend or remove from practice any Advocate of the High Court whom it finds guilty of professional or other misconduct. No provision exists in the Act for removal from practice on any other ground. To become Judge of a High Court can, by no stretch of imagina tion, be such a misconduct. In disqualifying Judges from pleading' or acting in the High Court the Legal Practice (Disqualifications) Ordinance, 1964 has, in effect, partially disbarred them and their disbarment is clearly not on the ground of misconduct. (c) Bar Councils Act (XXXVIII of 1926)‑

Basic enactment governing admission of persons as Advocate‑Right to practice in High Court‑Matter within exclusive jurisdiction of High Court and Bar Council. The basic enactment by which admission of persons as Advocates of High Court is governed is the Bar Councils Act, 1926. The determination of the right of an Advocate to practice in a High Court is intended by the Act to be a matter within the exclusive jurisdiction of that Court and the Bar Council. (d) Legal Practitioner‑

General law relating to and principles governing admission to practice‑Examined. (e) Bar Councils Act (XXXVIII of 1916)‑

Scheme of Act in concord with system prevailing in U, S, A. (f) Legal Practitioner‑

Admitting person to practice of law Inherent power of Court‑Function, judicial and not ministerial Legal Practice (Disqualifications) Ordinance (II of 1964) Provisions contravene principle Legal Practice (Disqualifications) Ordinance (II of 1964). "American Jurispurdence" Vol. V, p. 271. (g) Legal Practice (Disqualifications) Ordinance ‑(II of 1964), S. 3‑Provision "Notwithstanding anything contained in any other law for the time being in force"‑Opposed to principle governing admission of persons to practice of law. Admission to practice as an attorney at law, or the licensing of attorneys; is not regarded as the exercise of a mere ministerial power, but as a judicial function, and is therefore entrusted to the Courts or the judicial department rather than to the legislative branch of Government. Admission to the practice of law is an inherent power of the Court. The Legal Practice (Disqualifica tions) Ordinance, 1964 has, however, departed from the above principles by laying down that its provisions are to have effect notwithstanding any other law for the time being in force. (h) Legal Practitioner‑

Combine roles of both attorney at law and counsel. Halsbury's "Laws of England" Vol. 3, 3rd Ed., p. 16 ref. (i) Constitution of Pakistan (1962), Art. 126(2)‑Whether Judge of High Court cannot be appointed to Supreme Court till expiration of two years after ceasing to hold office (Quaere). (j) Constitution of Pakistan (1962), Art. 126(2)‑Disquali fications other than those imposed by Art. 126(2) cannot be added by any other law ‑ Legal Practice (Disqualifications) Ordinance (11 of 1964). (k) Retired Judges (Legal Practice) Order (21 of 1962), Art. 3‑Removes bar against legal practice by retired Judges even where they had given an undertaking not to practice. (l) Legal Practitioner‑

Person appointed Judge of High Court giving undertaking not to practice after retirement‑Bound by assurance in spite of absence of legal prohibition unless such bar specifically removed by law. Hatim Badr‑ud‑Din Tyabji v. The Chief Justice and Judges of the High Court of West Pakistan P L D 1957 S C (Pak.) 272; In the matter of Removal of the name of Mr. Akhlaque Husain from the Roll of Senior Advocate of the Supreme Court of Pakistan P L D 1960 S C (Pak.) 40; Syed Akhlaque Husain v. The Judges of the High Court of West Pakistan P L D 1961 S C 431 and Hashim Ali v. The State P L D 1963 Lah. 82 ref. (m) Constitution of Pakistan (1962)‑

Subordinate legislation cannot override provisions of Constitution. (n) Retired Judges (Legal Practice) Order (21 of 1962)

Provisions applicable only to Judges actually occupying that office for time being or those to be appointed subsequent to promulgation of Order. (o) Legal Practice (Disqualifications) Ordinance (II of 1964), S.3‑Ordinance examined in light of Constitution of Pakistan (1962) Ordinance, subordinate legislation Cannot override provisions of Constitution‑Provisions of Ordinance offend against Fundamental Right No. 8, Art. 6, Constitution of Pakistan (1962) No disqualification can be imposed against retired Judges in the matter of practice at law except those mentioned in Art. 126(2), Constitution of Pakistan (1962). East and West Steamship Company v. Pakistan P L D 1958 S C (Pak.) 41 and American jurisprudence, Vol. 5, p. 411 ref. (p) Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 8‑Identical in terms with Art. 12, Constitution of Pakistan (1956)‑Constitution of Pakistan (1956), Art. 12. (q) Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 8 ‑ Expression "possessing such qualifications "Qualification"‑Meaning. Jowitts' "Dictionary of English Law" ref. (r) Interpretation of Statutes ‑ "Retrospective"‑Meaning Statute retrospective if it affects, even for future only, character or consequences of transactions previously entered into or of past conduct. Halsbury's "Laws of England", Vol. 36, 3rd Edn., p. 423 ref. (s) Bar Councils Act (XXXVIII of 1926), S. 8(2) (a) and Letters Patent (Lahore), cl. 7‑High Court's roll of Advocates Confers statutory right to practice on Advocate enrolled‑No question of exercise of discretion by High Court. (t) Constitution of Pakistan (1962), Art. 6; Fundamental Right No. 4 (a)‑Disqualification from office or from pursuit of lawful avocation‑Not "punishment." John A. Cummings v. The 'State of Missouri U S S C R Book 18, 2nd Edn., p. 356 and Zain Noorani v. Secretary of the National Assembly of Pakistan P L D 1957 Kar. 1 ref. (u) Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 15 corresponds to Art. 5, Constitution of Pakistan (1956) Classification of citizens based on pertinent and real difference‑Not prohibited. (v) Legal Practice (Disqualifications) Ordinance (II of 1964), Ss. 4(a) & 3‑Provisions do not offend against Fundamental Right No. 15, Art. 6, Constitution of Pakistan (1962). (w) Constitution of Pakistan (1962), Art. 29

Legislative powers of President‑Satisfaction of President as to necessity of immediate legislation‑Subjective‑Not justiciable. Fazlul Quader Chowdhry v. Muhammad Abdul Haque P L D 1963 S C 486 ref. (x) Constitution of Pakistan (1962), Art. 250‑Provisions not applicable in case of repeal by subordinate legislation. Sh. Ataullah Sajjad Additional A.‑G. assisted by M. Ehsanul Haq for the Government of West Pakistan. Mian Mahmud Ali (for Bar Council on 28‑5‑64 only): Amicus Curie. ORTCHESON, J.‑

The facts leading up to this reference are that on retirement from the Bench certain former Judges, including Mr. Hatim Badrud Din Tyabji, Mr. Z. H. Lari, Syed Akhlaque Husain, Sheikh Muhammad Shafi and Mr. Manzur Qadir resumed practice at the Bar. The case of Mr. Manzur Qadir presents at least one distinguishing feature, namely, that both his assump tion of, and resignation from, the high office of Chief Justice of this Court were subsequent to the coming into force of the present Constitution on the 8th of June 1962, while the other petitioners had ceased to be Judges before that date. It may also be mentioned that the last judicial appointment held by Mr. Tyabji was that of Chief Judge of the former Chief Court of Sind, which he relinquished in the year 1951, while the other petitioners retired from the High Court of West Pakistan.

2. On the 30th of May 1962, the President of Pakistan made the Retired Judges (Legal Practice) Order (21 of 1962) (hereinafter referred to as the Order), Sub‑Article (1) of Article 3 of which runs: "

3. Enrolment and right to practice, etc.‑(1) Notwithstanding anything to the contrary contained in any other law or in any undertaking, a Judge shall, upon, his retirement or resigna tion from his office (but not removal), be forthwith entitled, upon application made to the appropriate Court, to be enrolled as a Senior Advocate of the Supreme Court, and also as an Advocate of a High Court, and upon being so enrolled shall have all the rights of such Senior Advocate or Advocate, including the right of audience." In Article 2 of the Order a "Judge" was defined as meaning a Judge of the Supreme Court or of a High Court and as including the Chief Justice of Pakistan and the Chief Justice of a High Court.

3. On the 30th of January 1.964, the President promulgated the Legal Practice (Disqualifications) Ordinance (II of 1964) (hereinafter referred to as the Ordinance) the constitutional validity of which is the question for determination in this case. As, despite the far‑reaching effect of its provisions, it is comparatively short, it will be convenient to reproduce it in extenso. It runts: "Whereas it is expedient to provide for disqualifications for legal practice in certain cases; And whereas the national interest of Pakistan in relation to the achievement of uniformity within the meaning of clause (2) of Article 131 of the Constitution requires Central Legislation in the matter; And whereas the National Assembly is not in session and the President is satisfied that circumstances exist which render immediate legislation necessary: Now, therefore, in exercise of the powers conferred by clause (1) of Article 29 of the Constitution, and of all other powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance :‑

1. Short title and commencement.‑(1) This Ordinance may be called the Legal Practice (Disqualifications) Ordi nance, 1964.. (2) It shall come into force at once.

2. Definitions.‑In this Ordinance, unless there is anything repugnant in the subject or context,‑ (a) `Judge of a High Court' includes any person who has, at any time after the fourteenth day of August 1947, held office in Pakistan as the Chief Justice or the Chief Judge, or as a Judge of any High Court or Chief Court in Pakistan, or as a Judicial Commissioner or as a Member of a Judicial Commissioner's Court in Pakistan, but does not include a temporary, acting or additional Judge of a High Court or Chief Court; and (b) Judge of the Supreme Court' includes any person who has, at any time after the fourteenth day of August 1947, held office in Pakistan as the Chief Justice or as a Judge of the ‑Federal Court of Pakistan or the Supreme Court of Pakistan, but does not include a temporary, acting, additional or ad hoc Judge.

3. Disqualification for legal practice in certain cases.

Not with‑standing anything contained in any other law for the time being in force, a person shall be disqualified, and, if he had been carrying on legal practice, or had been enrolled as an Advocate or pleader, before the commencement of this Ordinance, shall, upon such commencement, stand disqualified, from pleading or acting,

‑ (a) if such person has held office as a Judge of the Supreme Court, in or before any Court, authority or tribunal in Pakistan; and (b) if such person has held office as a Judge of a High Court, in or before any Court, authority or tribunal in Pakistan except‑ (i) the Supreme Court, and (ii) the High Court the territorial limits of whose jurisdiction do not extend to any area which was within the territorial jurisdiction of the Court in which he last held office as such Judge.

4. Repeal.‑The Retired Judges (Legal Practice) Order, 1962, (P. O. No. 21 of 1962) is hereby repealed."

4. At the time of the promulgation of the Ordinance the petitioners were counsel in a number of cases pending before this Court. Three of them, Mr. Lari, Mr. Akhlaque Husain and Sheikh Muhammad Shafi, applied in writing to this Court for clarification of the position. In his application Mr. Lari states: "Doubt has been expressed in some quarters as to my competency to practice in the Hon'ble High Court because of Ordinance No. 11 of 1964. This Ordinance, according to my submission, only repeals Retired Judges (Legal Practice) Order, No. 21 of 1962, and disqualifies those permanent Judges who started practice on the bass of this Order. But I have been prac ticing since 22nd March 1958, and not on. the basis of this Order." He then gives the history of his case and prays that the State be called upon to say whether in its view he is affected by Ordinance II of 1964 and, if the position of the State be that his right to practice has been thereby taken away, a Bench be constituted to determine the question judicially. The application having been presented before the Karachi Bench, the learned Senior Judge set up a Full Bench, of three Judges. Meanwhile, however, Mr. Akhlaque Husain had made a similar application before the Lahore Bench, and by order dated the 24th of February 1964, the learned Chief Justice directed that a Bench of five Judges be constituted and that the application filed at Karachi be transferred to Lahore. Finally, on the 26th of February 1964, it was ordered by a Division Bench at Lahore that Sheikh Muhammad Shafi's application be also heard by the Full Bench.

5. One point may We noted. As stressed by Mr. Brohi, the applications filed by Mr. Lari, Mr. Akhlaque Husain and Sheikh Muhammad Shafi are not under Article 98 of the Con stitution. The relief sought by Mr. Lari has already been set out in the previous paragraph. The petition filed by Sheikh Muhammad Shafi is headed: "Application under section 151, C. P. C.", and although the relief sought has not been specified, he submits in paragraph 29 that the Ordinance is void and states in clause (f) of his reasons "I was granted a licence to practice at the bar in all Courts. My licence to practice was only suspended, which reviewed (revived?) immediately after the petitioner caused (ceased?) to be a Judge of the High Court. I am under the Bar Councils Act as well as under all other laws entitled to practice in all Courts in West Pakistan. This right can neither be taken away nor abridged by any law."

6. The remaining petition, that of Mr. Akhlaque Husain, was lodged in connection with a proceeding. Writ Petition No. 66 of 1963, in which the petitioner had been engaged as counsel and after challenging the validity of the Ordinance, concludes: "Wherefore the petitioner humbly prays that the question whether the petitioner can or cannot be (sic) plead in. the case may be decided after notice to‑. the Advocate‑General of West Pakistan * * * * * *

7. Having given careful consideration to the question, I am of the opinion that the petitioners were well advised not to invoke the provisions of Article 98 of the Constitution. Apart from A orders in the nature of habeas corpus and quo warranto, the only reliefs this Court could grant to an aggrieved party under clause (2) of the Article as it originally stood, were (i) An order directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; (ii) an order declaring that any act done or proceeding taken in the Province by any of the above persons has been done or taken without lawful authority, and is of no legal effect. Neither of the above reliefs appears to be appropriate in cases where the: vires of an Ordinance is challenged. No doubt the Constitution (First Amendment) Act, 1964, added a new paragraph (c) to Article 98 (2), permitting this Court, on the application of any aggrieved person, to make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of the Court as may b appropriate for the enforcement of any of the fundamental right conferred by Chapter I of Part II of the Constitution, but direction of the above nature is scarcely appropriate in the circumstances of the present case, the relief sought by the petitioner being in essence a declaration that their right to practice has no been taken away by the Ordinance.

8. A reference to the new paragraph (c) of clause of Article 98, occurs in Article 133, to which a third clause was added by the first Amendment Act. Article 133, as amended, now runs: "133. (1) The responsibility of deciding whether a Legislature has power under this Constitution to make a law is that of the Legislature itself. (2) The validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law. (3) Nothing in clause (1) or clause (2) shall be construed to have the effect of taking away, limiting or restricting the power of a High Court exercisable by it under paragraph (c) of clause (2) of Article

98. Although the new clause overrides clause (2) to the extent in dicated, the words "power to make the law" occurring in the latter are used in a special sense, which has been elucidated by Kaikaus, J. in the following terms in Mr. Fazlul Quader Chowdury v. Mr. Muhammad Abdul Haque (P L D 1963 S C 486). "The words power to make law' used in Article 133 have refe rence to the power to make laws in Articles 131 and 132 and have the same connotation in Article 133 as they have in Articles 131 and

132. As I have already said, these Articles are to be read together. So construed Article 133 will only bar an enquiry into the question whether a matter was within the Third Schedule or outside it or whether the impugned legislation was inconsistent with Article 131 or

132. All other questions will remain within the jurisdiction of the Courts. Article 134, it may be pointed out, had become necessary because both Legis latures may legislate on the same subject and there has to be some forum for a decision of the question as to which law is to prevail."

9. In my opinion, the provision of the Constitution relevant to the present case is Article 6 as introduced by the First Amend ment Act. Clause (1) of that Article provides: "Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void." As the question whether the petitioners are in spite of the. Ordinance, entitled to act and plead in this Court in one which vitally concerns the Court, I have no hesitation in holding that the Bench is competent to consider and give a finding on, the question of the vires of the Ordinance so far as it affects the rights of the petitioners.

10. It must further be mentioned that although only the three petitioners named in paragraph 4 above filed applications in writing. Mr. Brohi stated when the case came up for hearing that he would also be arguing on behalf of Mr. Tyabji and Mr. Manzur Qadir. As the point at issue is common, we allowed Mr. Brohi to present the cases of these gentlemen also.

11. Before proceeding to deal with the constitutional position, it will be convenient to state the general law relating to Advocates of this Court. The basic enactment by which their admission is governed is the Bar Councils Act (XXXVIII of 1926). In section 2 of the said Act, `Advocate' is defined as meaning an Advocate entered in the roll of Advocates of a High Court under the provisions of the Act. Section 8 (1) provides that no person shall be entitled as of right to practice in any High Court unless his name is entered in the roll of the Advocates of the High Court maintained under section 8 (2). Subsection (5) of the same section requires the High Court to issue a certificate of enrolment to every person enrolled. Section 9 (1) empowers the Bar Council, with the previous sanction of the High Court, to make rules regulating the admission of persons to be Advocates, subject to the provision that such rules shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion. Among the matters enumerated in subsection (2) for which, without prejudice to the generality of the rule‑making power, the rules are to pro vide is "the qualifications to be possessed by persons applying for admission as Advocates". Section 10 (1,) lays down that the High Court may, in the manner provided, reprimand, suspend or remove from practice any Advocate of the High Court whom it finds guilty of professional or other misconduct. It is important to dote that no provision exists in the Act for removal from practice on any other ground.

12. Section 14(1) of the Bar Councils Act is also noteworthy. It runs: "14. (1) An Advocate shall be entitled as of right to practice ‑ (a) subject to the provisions of subsection (4) of section 9, in the High Court of which he is an Advocate, and (b) save as otherwise provided by subsection (2) or by or under any other law for the time being in force in any other Court in Pakistan and before any other Tribunal or person legally authorised to take evidence, and (c) before any other authority or person before whom such Advocate is by or under the law for the time being in force entitled to practice ." Subsection (4) of section 9 is irrelevant to the present case, relating only to the High Court of East Bengal, while subsection (2) of section 14 merely refers to the conditions subject to which Advocates of the other High Court (in the present' case the High Court of East Pakistan) may be permitted to practice in the High Court.

13. The following points emerge from the above pro visions :‑ (i) The right of an Advocate to practice in a High Court is based on the entering of his name in the role of Advocates maintained by that Court. (ii) The admission of persons to be Advocates is regulated by rules made by the Bar Council with the previous sanction of the High Court. (iii) The only ground on which an Advocate may, under the Act, be removed from practice is, professional or other mis conduct. (iv) Once an Advocate has been enrolled he is, under the Act, entitled as of right to practice in the High Court of which he is, an Advocate. In contrast to clauses (b) and (c) of subsection (1) of section 14, which governs the right of an Advocate to appear before tribunals, persons legally authorised to take evidence, and certain other authorities or persons, the right to practice in the High Court is not subject to the pro visions of any other law for the time being in force. In other words, the determination of the right of an Advocate to practice in a High Court is intended by the Act to be a matter within f the exclusive jurisdiction of that Court and of the Bar Council.

14. The scheme of the Bar Councils Act is in accordance with the system prevailing in America. Reference may be mad in this connection to the following passage at page 271 of Vol. of the work entitled "American Jurisprudence":‑ "But under the modern practice in the United States, although the function is administrative rather than judicial in nature, admission to practice as an attorney at law, or the licensing of attorneys, is not regarded as the exercise of a mere ministerial by power, but as a judicial function, and is therefore entrusted to the Courts or the judicial department, rather than to the legis lative branch of government. Admission to the practice of law is an. inherent power of the Court." The Ordinance has, however, departed from the above principles by laying down that its provisions are to have effect not with‑standing any other law for the time being in force.

15. Another point may here be mentioned. In the course of his arguments the learned Attorney‑General laid stress on the fact that section 3 of the Ordinance does not completely debar former Judges from carrying on legal practice, but merely disqualifies them from pleading or acting in Court. It is true that, unlike the English system; which draws a clear distinction between solicitor and barristers, the latter of whom alone are entitled to plead and act in the superior Courts, the system in force in Pakistan permits Advocates of a High Court to perform the functions o solicitors also. I would, however, draw attention to a passage at page 264 of Vol. 5 of American Jurisprudence:‑ "Formerly, a distinction was quite generally made between attorneys at law and counsel. Although some theoretical dis tinction is sometimes still maintained, the actual distinction between attorneys or solicitors and counsel, or barristers is practically abolished in nearly all the states of this country. The lawyer in charge of a case acts both as solicitor and counsel, and his services in the one capacity and the other cannot be well distinguished." It is also significant that in the enumeration of the rights and privileges of barristers given on page 16 of Halsbury's Laws of England (Third Edition, Vol. 3) the first right to be mentioned is that of audience as an Advocate in all the superior and most of the inferior Courts.

16. It is thus manifest that in disqualifying former Judges from pleading or acting in this Court the Ordinance has, in effect partially disbarred them, such disbarment being, moreover, clearly not on the ground of misconduct, though it is interesting to note that the Ordinance throws no light on the nature of the considera tions that impelled the President to take such a drastice step.

17. The Ordinance must now be examined in the light of the Constitution as amended. The first point calling for mention is that whereas Article 166 (3) of the 1956 Constitution explicitly provided that a person who had held office as a permanent Judge of a High Court would not be entitled to pled or act before that Court or any Court or authority within its jurisdiction, the present Constitution contains no such prohibition. The learned Attorney‑General frankly conceded that the omission was deliberate and, that being so, it is difficult to avoid the conclusion that the framers of the present Constitution intended to remove the bar on legal practice by retired Judges.

18. In this connection, attention may be drawn to Sub‑Article (2) of Article 126 of the Constitution, which runs: "A person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan before the expiration of two years after he ceased to hold that office." The above provision is important from two points of view. In the first place, it shows that the question whether any disquali fication should attach to retired Judges was present to the mind of the framers of the Constitution, and secondly, the fact that no other disqualification was imposed raises a strong presumption that no other was considered necessary. (It is, fortunately, un necessary for the purposes of this case to decide whether the L above Sub‑Article operates to prevent a Judge of the High Court from being appointed to the Supreme Court till the expiration of two years after he ceases toy hold office.)

19. Another point which Mr. Brohi rightly stressed is that several Articles of the Constitution specifically lay down that their provisions may be supplemented by a law of a competent Legislature. As an example, clause (2) of Article 103, which deals with the question of disqualification from membership of an assembly, may be cited. Four specific disqualifications are laid down in paragraphs (a) to (d), but paragraph (e), provides that a person "is disqualified from being elected as, and from being, a member of an assembly if he is otherwise disqualified from being a member of that assembly by this Constitution or by or under any law". The omission to lay down in Article 126 that in addition to the disqualification imposed by clause (2) M on retired Judges of the Superior Courts, other disqualifications may be added by law appears to me to indicate that in this matter the framers of the Constitution intended the Constitution itself to have the final word.

20. It may be asked why, if the intention of the Constitution to allow former Judges to practice was clear, it was necessary for the President to pass the Order. In my view, the Order was intended to clarify two points. In the first place, most; if not all, Judges appointed before the promulgation of the 1956 Constitution had given an undertaking that on retirement they would not practice before the Court of which they had been members, or Courts or authorities subordinate thereto. It might, therefore, have been argued that while the Constitution bad in general terms removed the bar on practice after retirement, those Judges who had given such an undertaking were bound by it.1 Article 3 of the Order set this supposed doubt at rest by stating explicitly that a Judge should upon his retirement be entitled to be enrolled as an Advocate of a High Court notwithstanding anything to the contrary contained in any undertaking.

21. It must next be seen that the position would‑ have been with regard to the undertaking given by Judges prior to the promulgation of the 1956 Constitution if the Order had not been passed. Mr. Akhlaque Husain and Sheikh Kuhammad Shafi expressed doubts as to whether the above undertakings were effective in law.

22. It may first be stated that the only one of the petitioners who is proved to have given an undertaking not to Appear and plead in the High Court of West Pakistan is Mr. Lari, who stated as follows in his petition :‑ "I did not take oath of office on the 23rd of March 1956, and tried to persuade the Government to relieve me of my under taking not to practice in the Hon'ble High Court given on the 7th December 1955, when I was made a permanent Judge." Sheikh Muhammad Shafi has made a somewhat hesitating state ment to the following effect :‑ "It was the 14th or 15th of October 1955 I along with the other Judges of the newly formed High Court of West Pakistan took oath of office. Afterwards, I have an idea, although I am not certain, that certain papers were sent by the then Chief Justice of West Pakistan High Court to me for my signatures. One of the papers was probably in the shape of an undertaking because I had some very anxious moments before I actually put my signatures on those papers. If any undertaking exists it has no legal consequences whatsoever." Mr. Tyabji had, as already stated, retired long before the High Court of West Pakistan came into being. Mr. Manzur Qadir assumed office as Chief Justice of this Court after the promul gation of the present Constitution, which required no undertaking. The only undertaking Mr. Akhlaque Husain is proved to have given was on the occasion of his becoming a permanent Judge of the Lahore High Court, and in two of the three cases in which he figures, and which will be presently referred to, it is assumed that no other undertaking was given.

23. The first of the judicial decisions cited before us in which the effect of the undertaking by a Judge has been consi dered is that of Mr. Hatim Badr‑ud‑Din Tvabji v. The Chief Justice and Judges of the High Court of West Pakistan (P L D 1957 S C (Pak.) 272). The facts briefly are that on the 20th of February 1957, the Judges of the Karachi Bench of this Court directed Mr. Tyabji to apply to the Registrar for enrolment as an Advocate. He filed an appeal before the Supreme Court, in which he pointed out that he had been enrolled as an Advocate entitled to practice in the Court of the Judicial Commissioner, Karachi, as far back as 1926, even before which he was enrolled as an Advocate of the Bombay High Court in 1916. When the Bar Councils Act was applied to the Judicial Commissioner's Court at Karachi in 1931, his name was entered on the roll maintained under that Act. In the course of the majority judgment, delivered while the 1956 Constitution was in force, the learned Judges observed that only two objections could be raised to Mr. Tyabji's right to be an Advocate of and plead in the High Court of West Pakistan without fresh enrolment, namely: (i) That when he was appointed a permanent Judge of the Judicial Commissioner's Court at Karachi, he had, as a condition of his appointment, given an undertaking not to practice in the Court of the Judicial Commissioner to which he was appointed or to which he might be transferred, or any of the Courts subordinate thereto; and (ii) that his right is subject to a prior right vested in the High Court by paragraph 10 of the High Court of West Pakistan (Establishment) Order, 1955, to determine whether Mr. Tyabji should enjoy the status of an Advocate of the new High Court and be entitled to plead and act therein. Both the above objections were overruled, and on the question of the effect of Mr. Tyabji's undertaking the learned Judges, re marked: "An undertaking, as such, is not sine qua non in relation to the validity of an appointment. That points to the necessity of strict interpretation of such an undertaking where it is given. This necessity has received a great enhancement of importance by the declaration, as a fundamental right in Part II of the Constitution (vide Article 12) that: 'Every citizen, possessing such qualification, if any; as may be prescribed by law in relation to his profession or, occupation, shall have the right to enter upon his lawful profession or occupation * * * * * * * * * His undertaking has been reproduced in full at the com mencement of this judgment. It is expressed in precise terms as a restriction upon the right to practice In the Court of the Judicial Commissioner to which I am appointed or to which I may be transferred, or in any of the Courts subordinate thereto. The question of practice in subordinate Courts need not be considered here, for enrolment under clause 7 (of the Letters Patent) gives by expression the right to practice in the High Court. The question is whether the expression `Court of Judicial Commissioner to which I am appointed or to which I may be transferred', includes, in turn the Chief Court of Sind, and now the High Court of West Pakistan. It is obvious that to produce such a result an extended interpretation must be placed upon the relevant Words. The undertaking expressly contemplates (a) appointment as Judge of a Judicial Commis sioner's Court, and (b) transfer as Judge from one Judicial Commissioner's Court to another. In our opinion, it could not cover the appointment of Mr. Tyabji as a Judge of the Sind Chief Court, because that was not a Judicial Commissioner's Court. The Sind Chief Court was in a different class or category of Courts from the Court of the Judicial Commissioner in Sind. It was not the result of any natural process of evolution or development operating in or upon the Judicial Commissioner's Court. The Sind Chief Court was a creation of an independent statute, to which appointments of Judges were expressly made, independently of anything concerning or applicable to the Judicial Commissioner's Court. "Even more evident is the complete distinctness of the High Court of West Pakistan from the Judicial Commissioner's Court. The Judges of the new High Court enjoy a status and emoluments, and exercise jurisdiction which are materially higher and larger than those applicable to the Judicial Commissioner and the Judges of his Court. It is a clear hardship to a person who is not and has never been within the range of selection for judgeship of the new High Court, to debar him from practicing in that Court, as if he might have been a Judge of that Court, and have given an undertaking not to practice therein after his retirement, when the fact is that he was a Judge of a different and, if we may say so with all respect, an inferior Court in point of status, and his undertaking was expressly in relation to that Court and other Courts of equal status."

24. From the above it will be seen that the right of Mr. Tyabji to practice in this Court was held by the Supreme Court to be established, one of the most important reasons for the decision being that the High Court of West Pakistan is a Court of entirely different and higher status from that of either the Chief Court of Sind or the Judicial Commissioner's Court at Karachi.

25. The next case is one cited by the learned Attorney General, In the matter of: Removal of the name of Mr. Akhlaque Husain from the Roll of Senior Advocate of the Supreme Court of Pakistan (P L D 1960 S C 40). It was ordered, for reasons irrelevant to the present case, that the name of Mr. Akhlaque Husain be removed from the roll of Senior Advocates of the Supreme Court, but that he should be permitted to apply for re‑instatement on that roll after the expiry of one year from the date on which his removal from the Bench of the High Court of West Pakistan took effect. Delivering the judgment of the Court, Cornelius, J. (as he then was) observed: * * * * * we do not propose either to disbar him permanently or to undertake the gratuitous task of referring his case to the Inn of Court to which he belongs. Nor is a reference to the High Court of West Pakistan necessary, since he is bound by the undertaking he gave when he assumed the office of Judge of that Court that after leaving it, he would not practice in that Court or any Court subordinate thereto." As will presently appear, the observation that Mr. Akhlaque Husain gave an undertaking on assuming the office of Judge of the High Court of West Pakistan seems, if I may say so with respect, to be based on a misapprehension, but the important point is that in the opinion of their Lordships, such an under taking, if given, would have been binding on him as matters then stood.

26. The next case is again that of Mr. Akhlaque Husain, Syed Akhlaque Husain v. The Judges of the High Court of West Pakistan (P L D 1961 S C 431). Mr. Akhlaque Husain had appealed to the Supreme Court from an order of the Karachi Bench of this Court directing that lie would not be permitted to appear in this Court as an Advocate. In the course of his judgment Cornelius, C. J., observed "Syed Akhlaque Husain became a permanent Judge of the West Pakistan High Court in October 1955, when that High Court was established. He had been immediately before a permanent Judge of the High Court of Judicature at Lahore. Before he became a permanent Judge of the Lahore High Court in October 1954, he had given an undertaking in the following words:‑ `I undertake as a condition of appointment that I will not after retirement practice in the High Court to which I am appointed or to which I may be transferred or in any of the Courts subordinate thereto. At that period, it was the practice to obtain such an under taking from every Judge of a High Court before appointing him to be a permanent Judge. It is important to note that by the terms of the undertaking, it was accepted as a condition of appointment. The High Court of West Pakistan Order, 1955, by which that High Court was constituted, provided by Article 6 that the Judges of the High Court at Lahore who held their appointments immediately before the Constitution of the West Pakistan High Court would as from the date of such constitu tion `hold their respective offices in the High Court on the same terms and conditions as were applicable to them immediately before. It follows from this provision that Syed Akhlaque Husain, when he continued as a Judge of the West Pakistan High Court after its constitution, continued also to be subject to the condition against practice as a Lawyer after retirement, in that High Court. * * * * * It is perfectly clear that the relevant provision in Article 166 (3) is in essence the same condition of appointment, which was in corporated in the undertaking obtained from Judges in the period preceding the promulgation of the Constitution. It makes no substantial difference, that it is expressed in the form of an absolute prohibition. It nevertheless remains a condition of the appointment and as such it appears to us to be perfectly clear that it was continued in relation to each permanent High Court Judge who held such an appointment on the 7th October 1958."

27. The significance of the date, the 7th October 1958, referred to in the last sentence of the above excerpt from the judgment of the learned Chief Justice may here be explained. On the said date Martial Law was proclaimed throughout Pakistan and three days later, on the 10th of October, the President made and promulgated Order No. I of 1958 known as the Laws (Continuance in Force) Order, Article 6 of which provided that those persons who immediately before the Proclamation were in office as Judge of the Supreme Court or of a High Court should continue in the said office on the same terms and conditions.

28. After the promulgation of the present Constitution the question of Mr. Akhlaque Husain's right to practice again came up before a Division Bench of this Court in Hashim Ali v. The State (P L D 1963 Lah. 82). The effect of the decision of the Supreme Court in case referred to above was discussed and in the course of his judgment (with which Manzur Qadir, C. J., concurred;; Shabir Ahmad, J. observed: " It may be mentioned that at the time of his being appointed a permanent Judge, Mr. Akhlaque Husain had given an under taking which was in the following terms:‑ It appears that it was not on the basis of the above reproduced undertaking, that the learned Judges of the Karachi Bench declined to allow Mr. Akhlaque Husain to appear in the High Court of West Pakistan, but on the basis of Article 6 of the Laws (Continuance in Force) Order, 1958, by reason of which provision Article 166 of the Constitution of the Islamic Republic of Pakistan continued to be applicable." The learned Judges therefore considered themselves at liberty to discuss the effect of the undertaking, the relevant portion of the judgment being as follows :‑ "The effect of the undertaking given by Mr. Akhlaque Husain at the time of his becoming a permanent Judge of the High Court of Judicature at Lahore may now be dealt with. The undertaking would not be applicable because it related to practising as an Advocate before the High Court of Judicature at Lahore‑a Court which ceased to exist on the 14th of October 1955, when the Establishment of West Pakistan Act came into force. No doubt the undertaking given by Mr. Akhlaque Husain was to the effect that he shall not practice as an Advocate before any High Court to which he may be transferred from the High Court of Judicature at Lahore but as the undertaking cannot create a disability which was not possible at the time of the giving of the undertaking, I have no hesitation in holding that the undertaking could be invoked against Mr. Akhlaque Husain only if he wanted to practice as an Advocate before the High Court of Judicature at Lahore or before a High Court to which he could be, and actually was, transferred under the law in force at the time he gave the undertaking in 1954 and I find no difficulty in holding that Mr. Akhlaque Husain's becoming a Judge of the High Court of West Pakistan did not amount to his transfer to another High Court for the purposes of the undertaking given by him."

29. With the utmost respect to the learned Judges of the Division Bench, they appear to have overlooked the fact that their Lordships of the Supreme Court had considered the effect of Mr. Akhlaque Husain's undertaking. In my opinion, the passage from the Supreme Court judgment reproduced in paragraph 26 above leads to the clear inference that even if Article 166 of the 1956 Constitution had not been enacted, Mr. Akhlaque Husain could, in the opinion of their Lordships, have been bound by the undertaking he had given on becoming a permanent Judge of the Lahore High Court. The conclusion arrived at by the learned Judges of the Division Bench in the passage quoted in the previous, paragraph therefore appears to me, with the utmost respect, to be contrary to the law declared by the Supreme Court, and if the answer to the question of the effect of the undertaking depended only on the reasoning of the learned Judges of the Division Bench, I would have had no option but to hold that any Judge shown to have given such an undertaking is bound by it. For other reasons, however, I am of the view that the 'removal of the bar on practice effected by the present Constitution has radically changed the situation.

30. I may here stress the fact that my object in citing the above decisions of the Supreme Court and of this Court on the question of Mr. Akhlaque Husain's right to practice was not to express any opinion on the merits of his individual case, but to call attention to the general principle laid down by the Supreme Court regarding the effect of an undertaking.

31. Having given my anxious consideration to the question, I am of the view that since, as I have held, the imposing of a constitutional prohibition on acting and pleading on the one hand, and obtaining an individual undertaking on the other, were only alternative methods of carrying out the same policy, the reversal of that policy by the present Constitution terminated the liability incurred by the giving of the undertaking. To hold otherwise would lead to unjustifiable discrimination, as will be seen from the following hypothetical case. A was appointed a Judge of this Court before the promulgation of the 1956 Constitution and gave an undertaking not to plead and act therein. B was appointed while that Constitution remained in force and consequently gave no undertaking, Article 166 (3) rendering it redundant for him to do so. If A's undertaking is considered as remaining operative after the coming into force of the present Constitution, which omitted the ban on acting and pleading the anomalous result would follow that B‑--would become entitled to practice , while A would continue to be debarred from doing so, in spite of the fact that the liability incurred by each at the time of appointment was precisely the same. Such a result would be contrary to the well‑established principle that injustice or unfair discrimination is not lightly to be attributed to the law‑giver.

32. In my opinion, therefore, the provision contained in article 3 of the Order that Judges would be entitled to practice despite any undertaking to the contrary only gave explicit expression to what is clearly implied in the removal of the ban on acting and pleading effected by the present Constitution. Moreover, for reasons to be given later, I am of the view that the Order is inapplicable to the petitioners. It further follows that even though, in my opinion, the principles governing the repeal of the Order by the Ordinance are those of section 6 of the General Clauses Act and not those of Article 250 of the Constitution, the undertaking given by the petitioners concerned cannot be consi dered as having revived (assuming, though without conceding) that the Order applies to them, a subordinate enactment being powerless to override the Constitution.

33. The second point not explicitly dealt with in the Con stitution relates to the position of those Judges who, before assuming office, did not possess the professional qualifications necessary for enrolment as Advocates. It might well have been argued that in spite of the removal of the bar on practice, such Judges would only become eligible for enrolment after acquiring the said qualifications. Article 3 of the Order clarified the position by providing that any Judge should upon his retirement or resignation (but not removal) from his office be forthwith entitled, upon an application made' to the appropriate Court, to be enrolled as an Advocate. It is in this context that the word "forthwith" is to be understood, since in my opinion the law‑giver should not be credited with the intention of fettering the discretion of the "appropriate Court" to refuse to enter any particular candidate on its roll of Advocates.

34. It may, however, be stated here that as all the present petitioners had already been enrolled as Advocates before becom ing Judges, they were not in this regard affected by the repeal of the Order. I therefore do not consider it either necessary or expedient to express any opinion as to the effect of the Ordinance on the right to practice of what were described in the course of arguments as "non‑professional" Judges. So far as the petitioners are concerned, Mr. Brohi is undoubtedly correct in contending that their right is not based on the Order, though the most effective argument in support of this contention is that advanced by Mr. Mahmud Ali Qasuri, whom we‑ requested to assist ‑us in his capacity of President of the Bar Council. He drew our atten tion to the definition of the word "Judge" given in the Order, which runs: " `Judge' means a Judge of the Supreme Court or of a High Court, and includes the Chief Justice of Pakistan and the Chief Justice of a High Court." I entirely agree with Mt. Qasuri that the implication of the above definition is that the Order applies only to those Judges who were actually occupying that office on the date of its coming into force (the 30th of May 1962) or were subsequently appointed. I the definition had been intended to cover Judges who had already retired, it would have included the Chief Justices (or Chief Judges and Judges of the Federal Court and other Courts, as was don in section 2 of the Ordinance (see paragraph 3 above). The wording of subsection (1) of section 3 of the Order (reproduced in paragraph 2 above) also strongly suggests that it is intended to refer only to those Judges who were either functioning as such at the time of the passing of the Order, or would be appointed, in the future.

35. To sum up on this aspect of the case, I am of the view that it was the clear intention of the Constitution that retired Judges should not fie disqualified from practicing, and that the Ordinance, being in the nature of subordinate legislation, could not override that intention.

36. The next contention of Mr. Brohi is that the Ordinance is opposed to Fundamental Right No. 8, incorporated in the Constitution by Act I of 1964. That Right is framed as follows:‑ "Freedom of trade, business or profession. Every citizen, possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation, shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business; Provided that nothing in this paragraph shall prevent‑ . (a) the regulation of any trade or profession by a licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein ; or (c) the carrying on; by the Central or a Provincial Government or by a corporation controlled by any such Government, of any trade, business, 'industry or service, to the exclusion, complete or partial, of other persons."

37. No right is more basic than the above. In support of this statement I cannot do better than cite the observations of their Lordships of the Supreme Court in Messrs East and West Steamship Company v. Pakistan (P L D 1958 S C (Pak.) 41). While discussing Article 1 of the 1956 Constitution, the terms of which are identical wit those of Fundamental Right No. 8 of the present Constitution their Lordships observed: "One may therefore safely conclude that among the con siderations which guided the Constitution makers in the drafting of Article 12, so as to secure freedom to the citizens of Pakistan to conduct any lawful trade, the place of greatest importance must be given, firstly, to the necessity of ensuring to every individual member of the community, a right to engage in lawful trade according to his choice and to exercise that trade in a mode settled by him at his own discretion and choice, within the legal requirements, and secondly that the interests of the community should be advanced, by the grant of such liberty to individual citizens, and that every action which tends to interfere with that liberty should be repressed, since it would be injurious to the interests of the State."

38. The question therefore arises whether the Ordinance can be said either to lay down a "qualification" within the meaning of the main portion, or purview, of Right No. 8, or to form one of the constituents of a valid licensing system as set out in clause (a) of the proviso. If it fails to fulfill one or other of these conditions, it offends against Right No. 8.

39. The relevant definition of the word "qualification" given "Dictionary of English Law" runs: "That which makes any person fit to do a certain act." Keeping the above definition in mind, the restriction imposed by the purview of Right No. 8 is not only eminently reasonable but in the case of many profession's, absolutely necessary in the public interest, the harm that could be wrought by unskilled T practitioners being incalculable. The law is one of such professions. Mr. Brohi has emphasized that all the present petitioners had been enrolled as Advocates before their elevation to the Bench which conclusively shows that at that time they possessed the qualifications necessary to enable them to enter upon their chosen profession. Leaving that aside for the moment, however, a perusal of sec tion 3 of the Ordinance (see paragraph 3 above) immediately reveals that, far from prescribing any positive qualification for enrolment as an advocate, its sole purpose is to disqualify particular category of persons, namely, retired Judges of the superior Courts; from. acting and pleading. The title, "The Legal Practice (Disqualifications) Ordinance", is also self-explanatory, and in my opinion there is no escaping the conclusion that it is impossible, to bring the Ordinance within the category of a law prescribing a qualification within the meaning of Right No. 8.

40. Even if the above conclusion be held to be erroneous, however, there is very great force in the argument of the petitioner that a qualification can only be laid down for prospective entrants into a profession, and cannot be retrospectively imposed to disqualify a person who has already entered upon that pro fession by virtue of possessing the qualifications required at the relevant time. I have already drawn attention in paragraph 11 above to the provisions of section 8(2) of the .Bar Councils Act, clause (a) of which empowers the Bar Council, with the previous sanction of the High Court, to frame rules prescribing the quali fications to be possessed by persons applying for admission as Advocates.

41. The aimed Attorney--‑General attempted to argue that s 'the Ordinance only debars' retired Judges from practicing in the future it cannot be said to be retrospective in its operation. The word "retrospective" is often misunderstood. In paragraph 643 of Halsbury's Laws of England, Vol. 36, Third Edition, at page 423, the learned author observes: "It has been said that the word retrospective is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the Courts regard as retrospective any statute which operates on cases or facts coming into existence before it W commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is no retrospective merely because it affects existing rights; nor is, it retrospective merely because a part of the requisites for its, action is drawn from a time antecedent to its passing." In the present case it appears to me that the Ordinance ha affected, even if for the future only, the consequences o transactions previously, entered into. These of the petitioner who filed written applications have stated therein that before the Ordinance was promulgated they had been engaged in a number of cases, which had not yet come up for hearing. It follows that as a result of the ban on pleading and acting imposed by the Ordinance the litigants concerned must have been compelled to make other arrangements, while the petitioners must have bee placed under the obligation to return the fees paid. The Ordinance is thus clearly retrospective.

42. With regard to the proposition that a statute is not retrospective merely because it affects existing rights, the position of an Advocate (or attorney) is thus summed up at pages 412 and 413 of American Jurisprudence, Vol. 5. "The fact that one has been admitted to the Bar and licensed to practice the profession of law does not confer upon him any vested right to continue in the practice of such profession. * * * * * * * * * * * His right to practice is not, however, a mere matter of grace or favour revocable at the pleasure of the Court or the common of the Legislature; he can be deprived of it only for good cause shown in a judicial proceeding conducted in the manner pointed out by law. He is entitled to hold his office during good behavior." If any authority is required for the proposition: that enrolment under section 8 (2) (a) of the Bar Councils Act or of clause 7 of the Letters Patent of the Lahore. High Court, which, by paragraph 7 of the High Court of West Pakistan (Establishment) Order, 1955, were subject to modification by certain instruments, made applicable to the High Court of West Pakistan, reference may be made to Hatim Badr‑ud‑Din Tyabji v. The Chief Justice and Judges of the High Court of West Pakistan, already cited, in which it is observed: "We have said already that, as respects practice in the High Court, enrolment in the High Court's roll of Advocates confer a statutory right to practice, under clause 7 of the Letters Patent. * * * * The absolute nature of this right, derived however under section 14 of the Bar Councils Act, was asserted and given effect to by the Judicial Committee in the case of Mr. P. R. Das. * * * * * The Privy Council proceeded solely on the accomplished fact' of the enrolment as establishing a statutory right to practice, and declared that no question arose of the exercise of any discretion by the High Court."

43. Even if, therefore, the Ordinance be considered as laying down a qualification within the meaning of Fundamental Right No. 8, which, in my opinion, it clearly does not, I have no ‑hesitation in holding that no qualification can be imposed retrospectively. From this point of view also, therefore, the Ordinance is invalid qua the petitioners.

44. Mr. Brohi also contended that the Ordinance offends against the provisions of two other Fundamental Rights, namely. Nos. 4 and 15, Clause (a) of Right No. 4. lays down that no law shall authorise the punishment of a person fora n act or omission that was not punishable by law at the time of the act or omission. Mr. Brohi referred us to the American case John A. Cummings v. The State of Missouri (U S S C R Book 18, 2nd Edn., p. 356) in which it was held that disqualification from office or from the pursuit of a lawful avocation is a punishment. In my opinion, however, it would be straining the language of Fundamental Right No. 4 beyond the limits of what is permissible to say that the. Ordinance imposes a punishment on retired Judges. Appointment as a Judge cannot possibly be held to be "an act" within the meaning of clause (a) of the Right. This argument is, therefore, without substance.

45. The next Fundamental Right relied upon by Mr. Brohi is No. 15, which states that all citizens are equal before law and are entitled to equal protection of law. According to Mr. Brohi, the Ordinance is discriminatory inasmuch as it draws a distinction in the matter of disqualification between permanent Judges on the one hand and temporary, acting, additional and ad hoc Judges on the other. This argument also does not impress me. The meaning of Article 5 of the 1956 Constitution, which corresponds exactly to the present Right No. 15, was discussed in Zain Noorani v. Secretary of the National Assembly of Pakistan (P L D 1957 Kar. 1) and the learned Judges observed: "This obviously means that all actually situated similarly will a be treated alike. In other words the purpose of (sic) Article is to rest the right and obligations of all persons upon the same rule under similar circumstances. The Article cannot prohibit classification of citizens provided the classification i based on a difference which is pertinent and real." In the present case there appears to me to be a pertinent and real difference between permanent Judges and those whose appointment is only for a very limited period of time. If Judges of the latter category appointed from among the members of the legal profession were to be debarred from practice on the termination of their brief terra of office, few if any Advocates would be willing to accept the appointment. From this point of view, therefore, the Ordinance cannot be said to offend against Right No. 15.

46. The only other restriction imposed by clause (a) of the proviso to Fundamental Right No. 8, is the regulation of a trade or profession by a licensing system. In the present case the petitioners were granted licences to practice as Advocates long before the Ordinance came into force. I have already pointed out that to disqualify the petitioners from acting and pleading in this Court and before subordinate Courts and authorities amounts to partially disbarring them. It must therefore be seen whether such disbarment is reasonable.

47. As has been noted, the only ground on which an Advocate can be removed from practice under the Bar Council Act is that of professional or other misconduct, and it would extremely difficult to argue that to become a Judge of this Court falls under that head. Moreover, the severe limitation on removal from practice imposed by the Bar Councils Act is not peculiar to Pakistan. In support of this statement two passages from Volume 5 of American Jurisprudence may be cited. At page 411 it is observed: "The purpose of suspending or disbarring an attorney is to remove from the profession a person whose misconduct has proved him unfit to be instructed with the duties and responsibilities belonging to the office of an attorney, and thus to protect the public and those charged with the administra tion of Justice, rather than to punish the attorney. The idea of punishment is usually held to Nave no appropriate place, and no punitive sentence can be imposed." Again, at page 413, the following principle is laid down:‑ "It (the Court) should disbar or suspend an attorney only where the continuance of the attorney in practice would be subversive to the proper administration of Justice or incompatible with a proper respect of the Court for itself or a proper regard for the integrity of the profession. * * * * * * * * * * * * The consequences of disbarment are so severe, both in degrading him in the eyes of the community and in depriving him of his means of livelihood that Courts generally take that step only when the misconduct of the attorney may properly be characterized as gross, and in cases of lighter offences or of a first delinquency, the minor punishment of suspension is usually inflicted." With regard to the second of the above passages, it is true that the disqualification imposed by the Ordinance on the petitioners is scarcely calculated to degrade them in the eyes of the community; on the contrary, it is much more likely to arouse feelings of. sympathy for them. For example, Mr. Mahmud Ali Qasuri stated that the general. reaction of the Bar to the Ordinance was that while it was considered good that those Judges who had retired should not later be allowed to practice, there was a serious doubt "when it hit those Judges who are already in the profession and whose right has been taken away". It is also true that the petitioners have not been completely deprived by the Ordinance of their means of livelihood, since the right of pleading and acting in the Supreme Court and the right to chamber practice have been preserved, but it cannot be denied that they have been deprived of a substantial portion of those means, and to me, at least, it does not appear that, whatever may be said regarding the propriety of a retired Judge's acting and pleading in the Court of which he has been a member, the fact of his having been a Judge of that Court renders him unfit to be entrusted with the duty and responsibility of doing so. When asked what was the basis of the feeling that retired Judges should not practice, Mr. Mahmud Ali Qasuri gave two reasons, first, that the litigant public is apt to think that a person who has been a Judge will receive more favour-able treatment from the Court of which he has been a member and, secondly, tliat the dignity of the legal profession and of the Judiciary require that the ban on appearing and pleading in that Court should continue. Neither of these reasons, in my opinion, justifies the drastic step of partially canceling the licences of those retired Judges, such as the petitioners, who had already resumed practice before the passing of the Ordinance, and, in the case of two of the petitioners, long before the promulgation of the present Constitution or the passing of the Order. Further, the removal of the ban on pleading and acting shows that the framers of the present Constitution saw nothing improper in permitting retired Judges to do so, and the petitioners are undoubtedly in a much stronger position in this respect than the present Judges and those to be appointed hereafter. As pointed out, Mr. Qasuri did not attempt to justify the provisions of the Ordinance so far as they relate to the petitioners.

48. The Ordinance was also attacked by learned counsel for the petitioners on the ground that it is not shown that any circum stances existed which rendered immediate legislation necessary, and that as the existence of such circumstances is a condition precedent to the exercise of the Ordinance‑making power of the President under Article 29 (1) of the Constitution, the Ordinance is ultra vires from this point of view also. It is, however, well settled that this Court cannot substitute its own satisfaction for that of the authority concerned. Reliance was placed on the observations of Cornelius, C. J., in Mr. Fazlul Quader Chowdhry's case. While discussing whether the existence of a "difficulty" within the meaning of Article 224 (3) of the Constitution is justiciable, his Lordship, after referring to the Privy Council case of Benoari Lal Sharma (72 I A 57) remarked: "In that case, it was undoubtedly held that the Governor General was himself the sole Judge of the emergency, but it must be remembered that the whole set of circumstances involved in that case was at a much lower level than that in the present case. * * * * * * * * While saying that the Governor‑General himself was the sole Judge of the question whether or not an emergency existed, the Judicial Committee were careful to point out, in more than one place in their Judgment, that they took judicial notice of a large number of circumstances existing .at that time in India from which the reasonable conclusion could be drawn that an emergency did in fact exist. * * * * * * * * * Had the elements of danger not been found to exist, the Courts might well have considered whether a declaration, contrary to the facts, that an emergency existed, could be allowed to stand." In the present case, however, the question is not whether, conditions requiring immediate legislation actually existed, but whether the President was that they did exist, and such satisfaction satisfied is essentially subjective. The vires of the Ordinances cannot, therefore, be attacked on this ground.

49. Mr. Brohi also argued that the order must be deemed to have been repealed under Article 250 of the Constitution and that, vide paragraph (c) of that Article, any right acquired under the repealed law is not affected. The importance of the question whether Article 250 of the Constitution or section 6 of the General Clauses Act, 1897, is applicable lies in the fact that under the latter enactment rights acquired are only protected if no intention to the contrary appears in the repealing law. I have already briefly stated that in my opinion Article 250 of the Constitution is not applicable. My reason for so holding is that the said Article only comes into operation where a law is c repealed by, under or by virtue of the Constitution itself, and in the present case the Ordinance comes within the category of subordinate legislation. However, if, as I have held, the Order is not applicable to the petitioners, the matter is of only academic interest.

50. Mr. Brohi addressed us at some length on the merits of the individual cases of the petitioners, but in view of my finding that the Ordinance is ultra vires qua them on the general grounds already given, I do not consider it necessary to enter into the case of each petitioner. .

51. In the result, having given very anxious consideration to this case, I would hold that the Ordinance is ultra virse qua the petitioners and that, notwithstanding its provisions, they are entitled to practice in this Court and, subject to the provisions of clauses (b) and (c) .of section 14 (1) of the Bar Councils Act, before the Courts and authorities mentioned in the said clauses.

52. No order as to costs. INAMULLAN KHAN, J.‑

I agree. MUHAMMAD DAUD KHAN, J. ‑

I agree. S. A. MAHMOOD, J.‑

I agree generally with the order proposed by my learned brother Ortcheson, J. SARDAR MUHAMMAD IQBAL, J.‑

I agree entirely with the reasoning of my learned brother J. Ortcheson, J., to which I have nothing to add. K. B. A. Order accordingly.