P L D 1967 Lahore 882 (PLP)

MUHAMMAD AKRAM, J.‑This order will dispose of Civil Miscellaneous No. 439‑C of 1966 (in R. F. A. No 55 of 1962) and Civil Miscellaneous No. 2847 of 1966 by the Advocate‑General, West Pakistan, Lahore, against Shaikh Muhammad Shafi and Mr. Manzur Qadir respectively, two of the learned Advocates on the rolls of the High Court of West Pakistan.

2. Sheikh Muhammad Shafi is a retired Judge of this Court and has resumed practice after his retirement. Mr. Manzur Qadir was the Chief Justice of this Court and he resigned from that high office in order to resume practice as an Advocate of this Court. They are at present engaged in some of the cases pending in the High Court of West Pakistan, by the parties to plead and act for them. But by means of these two applications the learned Advocate‑General has raised the objections that under section 3 of Legal Practice (Disqualifications) Ordinance (11 of 1964) both these gentlemen are debarred from pleading and acting for the parties in this Court over which they had once presided. According to the petitioner quite recently the Ordinance was found to be a valid piece of legislation by the Supreme Court in the Government of Pakistan v. Syed Akhlaque Hussain (P L D 1965 S C 527) and the learned Advocate‑General has, therefore, prayed that the said two learned Advocates be restrained from appearing in and pleading before this Court in the cases specified by him in the respective petitions. The respondents have contested these petitions on a number of grounds to maintain that as advocates on the rolls of the High Court of West Pakistan there is no legal or valid bar to prevent them from practising in the High Court of West Pakistan and the Courts subordinate thereto after their retirement.

3. Sheikh Muhammad Shafi was enrolled as a legal practi tioner second grade in the year 1925 in the Court of the Judicial Commissioner of the then North‑West Frontier Province. After completing two years of his practice, he became a legal practitioner first grade entitled to appear in the highest Court in that province. In July 1949, he was appointed as a Judge of the Court of the Judicial Commissioner in the North‑West Frontier Province. According to the petitioner at that time Sh. Muhammad Shafi gave an undertaking to the effect that after his retirement he shall not practise in that Court or in any of the Courts sub ordinate thereto. Afterwards in May 1955, he became the Judicial Commissioner of that Court. With the integration of the Province of West Pakistan, the High Court for the Province of West Pakistan was constituted in October 1955, and the Judges of the then High Court of Lahore, Chief Court of Sind and the Judicial Commissioners' Court of North‑West Frontier Province became the Judges of the High Court of West Pakistan. Mr. Muhammad Shafi continued to serve as a permanent Judge of this Court for sometime. On attaining the age of 60 years he retired as a Judge of the High Court of West Pakistan on 6th November 1960. After retirement, his licence was renewed and from 20th January 1962 he resumed practice as an Advocate on the rolls of the High Court of West Pakistan.

4. To start with Sheikh Manzur Qadir, Bar‑at‑Law, was admitted and enrolled as an Advocate of the High Court of Judicature at Lahore on 13th February 1936. After the Indepen dence he continued to practice here. When the High Court of West Pakistan was established in October 1955 he was placed on the rolls of the Advocates of this Court. He continued to practice in the High Court of West Pakistan until on 27th October 1958 he was appointed to be a Member of the Presidential Cabinet. On the 18th of October 1962, he became the Chief Justice of the High Court of West Pakistan. He served in that office for a time and then decided to resign to return to the bar. He relinquished the charge as the Chief Justice of this Court on 30th September 1963 and resumed practice as an Advocate of this Court.

5. The vexed question about the propriety of allowing the Ex‑Judges of the Superior Courts to practise in the Courts over which they have presided and the Courts subordinate thereto has engaged the attention of the Government for a long time. Prior to 1956, the practising Advocates who were elevated to the Bench on their appointment as permanent Judges of the High Court were required to give the undertakings in writing that after their retirement, they shall not practise in the same Court or Courts subordinate thereto. In 1956, the first Constitution of the Islamic Republic of Pakistan was promulgated. Article 166 (3) of the Constitution provided that a person who has held office as a permanent Judge of a High Court shall not plead or act before that Court or in any subordinate Court or authority within its jurisdiction. However, in 1958, as we all know, the Constitution was abrogated and the President on 10th October 1958 promulgated the Laws (Continuance in Force) Order, 1958. Notwithstanding the abrogation of the Constitution, subject to any Order of the President or the regulation made by the Chief Martial Law Administrator, the Republic of Pakistan began to be governed as nearly as may be in accordance with the late Constitution. So that the bar in Article 166 (3) of the late Constitution, on the retired Judges to resume practice in the High Court, continued to remain in force until 30th May 1962, when the Retired Judges (Legal Practice) Order (XXI of 1962) herein after called the President's Order) was promulgated by the President. This had made a radical departure in the policy and the retired Judges of the Superior Courts were enabled to enrol themselves and practise in all the Courts of the country without any restriction on them. Section 3 (1) of the President's Order says: "Notwithstanding anything to the contrary contained in any other law or in any undertaking, a Judge shall upon his retirement or resignation 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." The present Constitution of Pakistan was promulgated on 1st March 1962, and it came into force with effect from 8th June 1962. This did not contain any provision corresponding to Article 166(3) of the 1956 Constitution debarring the retired Judges of the Superior Courts to practise in these Courts after their retirement. However, by virtue of Article 225 of the Constitution, the President's Order continued to remain in force as the existing law of the Central Legislature. Consequently the retired Judges of the Superior Courts were free to practise in those Courts after their retirement. But on 30th January 1964, the President promulgated the Legal Practice (Disqualifications) Ordi nance (II of 1964) (hereinafter referred to as the Ordinance). Thereby the President's Order was repealed and once again the retired Judges of the superior Courts were disqualified from practising in those and the subordinate Courts. In this respect the bar is contained in section 3 of the Ordinance which is reproduced below:‑ "Notwithstanding 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."

6. This change in the law, adversely affected a number of Ex‑Judges of this Court. Conspicuous among them was the case of Syed Akhlaque Hussain which went up to the Supreme Court and the learned Advocate‑General has almost entirely relied on the decision by the Supreme Court in that case of Government of Pakistan v. Syed Akhlaque Hussain, to contend that the two respondents before us are debarred under section 3 of the Ordinance from appearing and pleading before this Court.

7. It is, therefore, necessary to examine the facts and circumstances of that case at length. Syed Akhlaque Hussain was a practising Advocate on the rolls of the Lahore High Court and was appointed as a Judge in the year 1953. He became a permanent Judge of that Court in 1954 and gave the following undertaking in writing:‑ "I undertake as a condition of the appointment that I will not after retirement practise in the High Court to which I am appointed or to which I may be transferred or in any of the Courts subordinate thereto." On 14th October 1955, the Establishment of West Pakistan Act, 1955 came into force and as a result of the order passed there under, Mr. Akhlaque Hussain became a Judge of the High Court of West Pakistan established under that Act. In the year 1959 he was removed from the office of the Judge of this Court on a reference by the President. After his removal he resumed practice and was on the rolls of the Advocates of this Court when the Ordinance II of 1964 was promulgated on 30th January 1964. Mr. Akhlaque Hussain, then applied in writing to this Court for clarification of his own position under the Ordinance. In the meantime he was engaged as a counsel in Writ Petition No. 66 of 1963, New Chaudhury Bus Service v. Member, Board of Revenue filed in the High Court of West Pakistan, Lahore, and a question was raised as to his right to appear, plead and act as an Advocate for the party, before this Court. On this Mr. Akhlaque Hussain filed another application in that case before the High Court to assert his right to continue the practice in this Court in spite of the Ordinance. However, the High Court registered this application as a separate Writ Petition No. 217 of 1964; "in the matter of Syed Akhlaque Hussain, Advocate". In that petition he prayed that the question of his right to act and plead, in the case in which he was engaged, before this Court should be decided after notice to the West Pakistan Advocate‑General. He chal lenged the validity of the Ordinance, inter alia, on the main ground that it was violative of the fundamental rights under the Constitution of 1962. In view of the importance of the questions raised in the Writ Petition, the learned Chief Justice of this Court on 24th February 1964 constituted a Full Bench of five Judges to hear the petition along with a similar Writ Petition No. 263 of 1964

"In the matter of Mr. Z. H. Lari Advocate", pending at Karachi; which was ordered to be transferred to Lahore. In addition to this, similar matters concerning the other ex‑Judges, including the present two respondents were heard together by the Full Bench.

8. The Full Bench of the Lahore High Court unanimously decided that the Legal Practice (Disqualifications) Ordinance (II of 1964) was ultra vires qua all the petitioners before them and notwithstanding the provisions of the Ordinance, they were entitled to practise in the High Court of West Pakistan and the Courts subordinate to it. The decision of the Full Bench‑"In the matter of Syed Akhlaque Hussain Advocate (P L D 1965 Lah. 147)" On the face of it, the decision by the Full Bench is also applicable to Mr. Z. H. Lori, Sheikh Muhammad Shafi, Mr. Manzur Qadir and Mr. H. B. Tyabji, Advocates, who were represented before the Full Bench. The Court was impressed by the fact that the present Constitution does not contain any provision corres ponding to Article 166(3) of the 1956 Constitution, disbarring the retired Judges to practise in the Courts over which they had been presiding. In the opinion of the learned Judges of the Full Bench this omission was significant in that the framers of the present Constitution intended to remove the bar on legal practice by the retired Judges and that by necessary implication the principle contained in section 3 of the Retired Judges (Legal Practice) Order (21 of 1962) to the effect that Judges would be entitled to practise after their retirement despite the undertaking given by them to the contrary, was recognised by our present Constitution. The High Court was further of the opinion that the Ordinance was ultra vires of Fundamental Right No. 8 in so far as it has imposed unreasonable restrictions on the rights of the retired Judges and debarred them to act and plead in the Courts of this country. The High Court was also of the view that under the law, except for the disabilities contained in Article 126(2) of the Constitution, no disqualification could be imposed on the retired Judges of the Superior Courts and Conse quently they could not be disbarred from joining practice after their retirement.

9. On 23rd December 1964, the Central Government of Pakistan applied to the Supreme Court for special leave to appeal against this decision of the Full Bench and impleaded (i) Syed Akhlaque Hussain, (ii) Sheikh Muhammad Sbafi, (iii) Mr. Z. H. Lori, (iv) Mr. H. B. Tyabji, (v) Mr. Manzur Qadir and (vi) The Province of West Pakistan as the respondents in the case. But on 22nd April 1965, the Central Government filed an application in the Supreme Court to delete, the names of all the respondents, except for Syed Akhlaque Hussain and the Province of West Pakistan. The Supreme Court granted this prayer with the result the names of Sheikh Muhammad Shafi, Mr. Z. H. Lori, Mr. Tyabji and Mr. Manzur Qadir were struck off from the appeal filed by the Government. The Supreme Court granted the leave to appeal to the Central Government against Syed Akhlaque Hussain and the Government of West Pakistan was retained as an additional respondent in the case.

10. The Bench which heard the case in the Supreme Court was at the time composed of six learned Judges, A. R. Cornelius, C. J., S. A, Rabman, Fazle‑Akbar, B. Z. Kaikaus, Muhammad Yaqub Ali and Abdus Sattar, JJ. They were divided in their opinion and wrote their separate judgments in the case. In view of the difference of opinion between them, it is my painful duty to analyse each of those judgments in an endeavour to get at the ratio and I shall be doing so with profound respect and great deference that I owed to the learned Judges of the highest Court in the realm.

11. The case before the Supreme Court was beset with a number of difficult questions to answer. However, the decision by the Supreme Court primarily rested on two main questions mooted in the appeal. The first question relates to the effect of the undertaking, given by Syed Akhlaque Hussain on his appoint ment as a permanent Judge of the Lahore High Court, not to resume the practice after his retirement. As already mentioned Mr. Akhlaque Hussain was removed from the office in 1959. on a reference by the President. On the language of section 3 of the Retired Judges (Legal Practice) Order (21 of 1962), the learned Judges of the Supreme Court were of two opinions as to whether it was equally applicable to the ex‑Judge who had been "removed" from the office as distinguished from those who had "resigned" or "retired". In the opinion of the learned Chief Justice, the President's Order had expressly done away with the undertaking given by Mr. Akhlaque Hussain even though he was removed from the office of the Judge and was not a Judge who had resigned or retired. The Chief Justice observed:‑ "It is difficult to suppose that it was the intention of the wording of this Order that, while such an undertaking should be of no effect in the case of Judges who had retired or had resigned, to deprive them of the privilege of re‑entering the legal profession, yet it should stand in the way of a Judge who had been removed. The more reasonable view is that what was withheld from a removed Judge was the right to claim enrol ment, and as for the undertakings they were effaced wholly by the Order as a preliminary step." On the view of the case taken by B. Z. Kaikaus, J. Hi: Lordship felt that there was no need for him to examine the general effect of the President's Order on the removed Judges; however, at the same time he agreed with the Chief Justice in this respect and remarked that it was difficult to impute to the Legislature an intention of preserving the undertaking in respect of removed Judges. Similarly, Abdus Sattar, J. concurred in holding that the undertaking given by Mr. Akhlaque Hussain lost all its force on the promulgation of the President's Order. On the other hand S. A. Rehman, J. differed with the learned Chief Justice in this respect and observed:‑ "My Lord has taken the view that President's Order 21 of 1962 had the effect of abrogating any undertaking given by a permanent Judge of a High Court, including a Judge who had been removed from his office. I am conscious of the high weight of authority behind this opinion, but I venture to suggest, with the utmost deference, that the inference does not necessarily follow from the provisions of this Order. In terms, it applies only to Judges who have retired from or resigned their office but not those who have been removed there from. It confers certain privileges on the first two categories of Judges but says nothing about any benefit being conferred on those Judges who have been removed from office. This fact, taken along with the circumstances that the provision contained in clause (3) of Article 166 of the Constitution of 1956, has not been repeated in the 1962‑Constitution, does not, to my mind, destroy the effect of a condition of service to which a Judge was subject when he was removed from office." For similar reasons Fazle‑Akbar, J. agreed with this view. In fact the two judgments written by S. A. Rahman and Fazle Akbar, JJ., in the case almost entirely rest on this view. Their Lordships found that this was sufficient to dispose of the whole case and that it was quite unnecessary for them to go into any other controversy raised before the Court. Muhammad Yaqub Ali, J. was of the opinion that the President's Order did not absolve Syed Akhlaque Hussain of the undertaking given by him. Thus the six learned Judges in deciding that case were equally divided on the effect of the President's Order on the undertaking given by Syed Akhlaque Hussain. The three of them were of the opinion that the undertaking given by Syed Akhlaque Hussain in not to practise after retirement was completely nullified and washed away with the promulgation of the President's Order and that no distinction could be created against him even though he was a Judge who had been removed from the office. The remaining three learned Judges were of the definite opinion that the provisions of the President's order do not help a Judge like Mr. Akhlaque Hussain who was "removed" from the office. Section 3 was applicable to those Judges only who had retired or resigned from the office. Nonetheless, it is absolutely clear that all the learned Judges were unanimously of the opinion that the President's Order had completely washed away and nullified the similar undertakings previously given by the Judges of the High Court who have either retired or resigned from their office.

12. The next question of importance before the Supreme Court in the case of Syed Akhlaque Hussain related to the validity of the Legal Practice (Disqualifications) Ordinance (II of 1964). Before the Supreme Court, on behalf of Mr. Akhlaque Hussain, it was stressed that the Ordinance was void for two main reasons, Firstly, because it was against the intention of the very Constitu tion of 1962 as held by the High Court and secondly, because its provisions were ultra vires the Fundamental Right No. 8 preserving the freedom of the citizens to practise any lawful profession.

13. As to the first contention in this respect, the learned Chief Justice did not find anything in the Constitution of 1962 to hold that the provisions of the Ordinance are contrary to the intention of, the framers of the Constitution. . He observed; "It is impossible to support the view that the Legal Practice (Disqualifications) Ordinance, 1964 is void because it is con trary to the intention of the Constitution. The Constitution of 1962 itself provides that such an Order of the President, made in the Martial Law period, as the Retired Judges (Legal Practice) Order, 1962, which was not repealed by the new Constitution, should continue as existing law, in other words, in the status of a Central Legislative enactment. It is going altogether too far to say that by implication from mere omission of the express bar provided by an earlier superseded Constitution, the intention of the 1962 Constitution was that the Retired Judges (Legal Practice) Order, 1962 should for all time remain permanent and unchanged on the statute book. The terms of a Constitution are to be applied according to their tenor, giving the expressions used the widest meaning in the context, but an earlier Constitution is not part of the context, and to refer to it for enlarging the meaning of the existing Constitution, or importing intention into it, does not seem to be permissible. As a law of the Central Legislature the Order of 1962 was amenable to amendment, modification and repeal in the exercise of legislative power by the Centre. The Ordinance of 1964 repeals the Retired Judges (Legal Practice) Order, 1962 expressly, and there is nothing to indicate that this repeal was ultra vires of the Central Legislature whose powers were exercised by the President in making the Ordinance of 1964." Abdus Sattar, J. in agreeing with this conclusion observed: "It is difficult to spell out such an intent from a mere omission. It is true that the Constitution itself at the time of its promulgation did not place any embargo, but, on the other hand, continued in force the Order. Does this fact lead to the irresistible conclusion that the power of the Legislature to place such an embargo has been taken away? I am unable to draw such a conclusion. If that was the intention, why then was the Order by the Constitution itself placed in the position of a Central Law." Muhammad Yaqub Ali, J. gave his own reasons for the view and observed :‑ "I am in respectful agreement that by omitting to make a provision similar to Article 166 (3), it was intended that there will be no such bar at the level of the fundamental law, but there is no rule of interpretation, at least none was cited from the Bar that an omission can also be treated as an enacting provision of law." However, B. Z. Kaikaus, J. has largely relied upon the provisions of Article 124 of the Constitution in holding that the terms and conditions of the service of the Judges guaranteed by the Constitution, could not be altered except by a change brought about in the Constitution and declared that the Ordinance was void and illegal. In the face of his findings on the other issue, S. A. Rahman, J., observed that the controversy in this respect was reduced to a more or less academic character and, therefore, he found it unnecessary for him to express any opinion on the point. He observed :‑ "It is a question of some nicety whether, even if this subsequent legislation is to be regarded as competent to repeal the Retired Judges Legal Practice Order, 1962, which had acquired the status of a Central Act, the condition of service attaching to a High Court Judge could be the subject of legislation by the Central Government or whether it had to be regulated by a constitutional provision alone, I would reserve that question for decision in an appropriate case wherein it really calls for adjudication." Fazle‑Akbar, J., did not deem it necessary to decide whether the Ordinance was ultra vires or not. In the final analysis, three of the learned Judges of the Supreme Court were of the opinion that no adverse inferences can be raised from the mere omission of a provision in the present Constitution similar to that contained in Article 166(3) of the 1956 Constitution. One of them was definitely of the opinion that the President or the Legislature was not competent to alter the terms and conditions of the service of the Judges specified in the Constitution. The remaining two Judges of the Supreme Court did not find it necessary to go into this matter at all.

14. As mentioned above the second line of attack against the validity of the Ordinance before the Supreme Court was based on Fundamental Right No. 8 safeguarding the freedom of the citizens to enter upon any lawful trade, business or profession subject to any reasonable restrictions imposed by the Government. In fact this question assumed a great importance in the case. In his leading judgment the learned Chief Justice was of the opinion that the Ordinance did not impinge against the Fundamental Right No. 8 and was intra vires. He observed:‑ "On a plain reading of this Ordinance, I think it is possible to say that the use of the word "disqualification" in this instrument is totally misplaced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . What the Ordinance provides is that certain specified‑members of the legal profession namely ex- judges of the superior Courts, whose names are carried on the roll of Advocates of the Superior Courts, should not plead or act except before certain specified Courts. There is nothing in the Ordinance involving the removal of the name of such persons from any roll of Advocate. All the indirect advantages which flow from the possession of such a status are available to those persons, but as from the date of the Ordinance, they will not enjoy the full franchise of enrolled Advocates given by section 14 of the Bar Councils Act, and may not practise in the High Court in which they are enrolled as Advocates or in any Courts subordinate to a High Court, or before any authority or tribunal in Pakistan. They may practise before a High Court of which they were not Judges and they may practise also in the Supreme Court, upon being duly enrolled. They are not disqualified from following the profession in other ways, such as in the capacity of Legal Advi sors, or by practise in chambers. The bar is as to appearance in specified Courts." In the opinion of the Chief Justice the Ordinance was an entirely reasonable move on the part of the Legislature, in relation to this vexed question of allowing the Judges to resume practice in the Courts over which they have been presiding or Courts subordinate thereto. The Ordinance of 1964 operates in aid of maintenance of judicial machinery at the apex of the system, in that stage of dignity, which is essential to its proper operation. It is not only a reasonable classification, but a real necessity, for the proper continuance of the whole system of justice in our country. Muhammad Yaqub Ali, J. concurred with this view and added that the restrictions imposed by the Ordinance are compatible with the policy of the law and are reasonable. Similarly Abdus Sattar, J. has held that the result of the Ordinance has been nothing more than to modify certain provisions of the Bar Councils Act and no Fundamental Right has been affected. But a contrary view was expressed by B. Z. Kaikaus, J. In his opinion every citizen has a fundamental right under the Constitution to practise any lawful profession, the impuged Ordinance was violative of this guarantee afforded to them by the Constitution and the restrictions imposed by it are unreasonable. The learned Judge observed:‑ "The impugned Ordinance does not even pretend to regulate anything. It does not say that if an ex‑Judge can practise in two areas he will be confined to one. The impugned Ordinance does not speak of any other area at all. It is only concerned with debarring him from practise in one area without caring whether he is entitled to practise in the other area." In his opinion the Ordinance has practically destroyed the right of the Judges of the Supreme Court and the High Court to practise after their retirement. S. A. Rahman, J. saw the force of the opinion expressed by the learned Chief Justice in this respect; but he did not commit himself finally in the matter and reserved his opinion with the remarks: "It follows, therefore, that the question whether the ban imposed by the impugned Ordinance amounts either to a `qualification' for practice in the sense that a `disqualification' can also be included within that generic term, or whether its provisions amount to `regulation' of the profession of law, without interfering with the content of Fundamental Right No. 8, guaranteed by the Constitution, need not be decided in the present case, with respect, I might say, however, that the considerations mentioned by my lord the Chief Justice in support of his view that the provisions of the impugned Ordinance were regulatory in character within the meaning of the term `regulation' as used in Fundamental Right No. 8, are attractive, but I would not like to commit myself to a final opinion on that question as I do not feel pressed to do so in the circum stances of the instant case." Similarly, Fazle‑Akbar, J. did not find it necessary to go into this issue and observed:‑ "Much was said at the Bar on the question of the validity of Ordinance II of 1964. Having regard to the conclusion at which I have arrived, namely, that Mr. Akhlaque Hussain is still bound by his undertaking, it is not necessary to decide in this case whether Ordinance II of 1964 is ultra vires or not I therefore, hold myself quite free to consider this point should it again come before this Court for decision." In this manner the three learned Judges have expressly held that the Ordinance was intro vires of the Fundamental Rights; one was clearly of the contrary opinion that the Ordinance was ultra vires of Fundamental Right No. 8, and the remaining two Judges did not commit themselves to any final opinion on this point.

15. In the final result the Supreme Court accepted the appeal by the Central Government of Pakistan and passed the following order against Sved Akhlaque Hussain by a majority of five Judges, B. Z. Kaikaus, J. dissenting from it:‑ "In accordance with the view of the majority we hold that the Legal Practice (Disqualifications) Ordinance, 1964, is valid to prevent Syed Akhlaque Hussain from appearing in the High Court of West Pakistan in Writ Petition No. 66 of 1963, New Chaudhury Bus Service v. Member, Board of Revenue, as counsel. We, therefore, allow this appeal, but leave the parties to bear their own costs."

16. It goes without saying that the law declared by the Supreme Court of Pakistan is binding on all Courts in the country and Article 63 of the Constitution lays down: "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." It can be readily conceded that it is the decision of the Supreme Court, to distinguish it from the individual opinion of the learned Judges, which is binding on all the Courts in Pakistan. Mr. Brohi was quite right in asserting that the Supreme Court as such is a legal institution. It operates under the mandate of the Constitution and functions through natural persons who adorn it as its Judges. It was agreed before us that the "decision of the Supreme Court" means the decision by the majority of the Judges constituting the bench hearing a case. The voice of the majority of the Judges is the voice of the Supreme Court as such.

18. But it was argued before us for the respondents that although the majority of the learned Judges of the Supreme Court constituting the Bench had decided to accept the appeal against Syed Akhlaque Hussain, yet the Court as such did not decide t any question of law or enunciate any principle of law by the ‑requisite majority, to make the decision on those matters binding on all other Courts in Pakistan under Article 63 of the Constitution. It was suggested that the decision of the Supreme Court on the questions of legal importance, must be backed by an over‑all majority of the learned Judges hearing the case, D before it can be applied as a good precedent to be followed in the future. They averred that the separate judgments of each of the learned Judges merely embody their individual opinion on the matters in issue and the law declared by the Supreme Court must be found in the order passed by it. On analysing the judgments delivered in this case of Syed Akhlaque Hussain, it was submitted before us on behalf of the respondents that the learned Judges of the Supreme Court hearing that case were divided in their opinion on the different questions of law raised before them. So that none of the principles of law which came up for discus sion before the Supreme Court was decided by an absolute majority of the learned Judges composing the Bench. It is no doubt true that the )earned Judges were not unanimous in their opinion on the difficult legal questions raised before them. Not only this, as far as I can see none of the questions of law that arose for determination in the case, excepting one, was settled by an absolute majority of the opinion of at least four out of the six learned Judges composing the Bench.

19. But in my opinion this does not mean that the Supreme Court in disposing of the case of Mr. Akhlaque Hussain did not decide any question of law binding on the other Courts in the country. It cannot be said that the Supreme Court decided the case against Syed Akhlaque Hussain without even deciding the controversial question of law on which the fate of the case rested. This suggestion is paradoxical, illogical and self‑contra dictory. The correct approach in all such cases of difference of opinion between the Judges is to ascertain the ratio decidendi on " which the judgment of the majority is based. This matter was discussed and fully illustrated by the Court of Appeal in Redgrave v. Hurd ((1881) 45 h, T R 485). In that case a previous judgment delivered in Attwood v. Small (6 Cl. & F 232) was analysed and explained at length by Jesse], M. R., to get at the ratio. He observed: "Where you have five Lords giving independent reasons for their judgments it is difficult, if not impossible, to ascertain with accuracy the ground upon which the House of Lords decided. If the five Lords give five different sets of reasons, as happens sometimes, you have the decision, and you must find out for yourself which of the judgments is to be relied upon as giving the proper reasons; but I think in the case of Attwood v. Small, and in all these cases, you must only look at the judgments of the Lords who decided the case, because their judgments alone are of importance and therefore, whatever reasons are to be found in their judgments must be either wholly or to some extent the judgment which guided the House of Lords in coming to their conclusion. Therefore, in considering the judgments in that case, I have confined myself for this purpose to the opinion of the three Lords who decided the case in favour of the appellants." In Redgrave v. Hurd, Jessel, M. R. was hearing an appeal from a decision of Fry, J. granting specific performance to the plaintiff of a contract to buy a house, and dismissing with cost the counter‑claim of the defendant asking for rescission of the contract on the ground of deceit practised by the plaintiff in respect to the agreement. In discussing the law bearing on the case before him, Jessel M. R. observed: "It was not necessary, in order to set aside the contract, to prove that the person who obtained the contract, and who sought to keep it, if he obtained it by material false representation, knew at the time the representation was made that such representation was false". He further observed that it was apparently supposed in the Court below that the decision of the House of Lords in the case of Attwood v. Small was an authority which conflicts with that proposition. But in the opinion of Jesse], M. R. this view formed by the learned Judge below was inaccurate and what is more, was not borne out by the case to support his conclusions. In analysing the judgment delivered by the House of Lords in the case of Attwood v. Small in order to ascertain the reasons behind it, Jessel M. R. con fined himself to the opinions expressed by the three noble Lords who decided the case in favour of the appellant by a majority of three to two and refused to look at the reasons behind the minority judgments. In Attwood v. Small the first opinion was that by the Earl of Devon and the ground of his judgment was this : "The whole course of the proceedings from its commencement to the close tends to show that the purchasers did not rely on any statements made to them but resolved to examine and judge for themselves". Now that is a good ground if it were borne out. It does not agree with the reasons that are given by the other Judges. In discussing the case of Attwood v. Small further, Jessel, M. R. then turned to judgment written by the Lord Chancellor, who said: "We are now trying two propositions by this evidence ; first, whether fraud was practised ; and secondly, whether that which is alleged as fraud, or rather the facts from which fraud is inferred, were not known to the plaintiffs, or to those by whose conduct and by whose knowledge they must be affected from the very commencement of this transaction. I have satisfied myself that both these proposi tions are in favour of the defendant." That is, he found, not only no fraud, but he also found that all the material facts were known to the parties before they entered into the contract. Commenting further Jessel, M. It. remarked that those are the two grounds of the judgment by the Lord Chancellor, and neither of them is anything like the proposition to be found in the judgment of Mr. Justice Fry, that if cursory or ineffectual attempts are made by the agents of the person defrauded to discover the real facts, he loses his right to complain of the fraud. There is a sentence in Earl of Devon's judgment to that effect but not in Lord Cottenham's. The only other judgment on which the decision in Attwood v. Small rested was the judgment delivered by Lord Brougham. He observed: "My Lords, when we apply to this case the principles which I stated at the outset, we find the facts are wanting; we find there is no misrepresentation which gave rise to the contract" (that is, he concurs with Lord Cottenham that there is no fraud‑that is the first ground). He added we find that the purchasers did not rely upon the representation, but said, we will inquire ourselves". 'That is the second ground; that is the same as Lord of Devon's ground, and also would be a good answer, though it was not taken by Lord Cottenham. In the light of this discussion Jessel, M. R. in Redgrave v. Hurd, observed that the two grounds taken by Lord Brougham are that there was no fraud and that the purchasers did not rely on the representations, he agreed in one with Lord Cottenham and in the other with Lord Devon. To sum up Jessel, M. R. said: but, take it which way you will, the three grounds alleged by the three noble Lords‑one having one, and each of the other two amounted to, no fraud, actual knowledge of the facts before the contract, no reliance upon the misrepresentation. This was the "real decision or the real grounds of the decision" in the case of Attwood v. Small and the proposition of law derived there from‑which was applied by Jessel, M. R. in deciding Redgrave v. Hurd.

20. I feel that I have made a long digression but this was absolutely necessary in order to remove the confusion that was generally prevailing at the time of the arguments addressed to us and I make no secret in admitting that was not myself clear in the beginning on this question of immense importance raised before us. It is our duty and obligation under Article 63 of the Constitution to faithfully discern the judgment of the Supreme Court, recognise the reasons behind the order made by it and firmly apply the decision to the extent it decides a question of law or is based upon or enunciates a principle of law as deduced from those reasons. The judgment of the majority of the Judges constituting the bench hearing the appeal, is the judgment of the Supreme Court which is to be looked at in order to ascertain the ratio decidendi behind it. The reason behind the judgment of the Court, and the grounds upon which that decision is based, have to be ascertained with care. In case of separate judgments by the Court giving different reasons for the decision, we must find our for ourselves which of the judgments are to be relied upon and to what extent as giving the real reasons or the grounds behind the decree or the final order passed by the Court on which it is based. There may be additional or supplemental grounds in those judgments on which the decision of the Court is resting. But other observations, if any, in some of the majority judgments. are to be ignored in arriving at the pith and substance of the decision. The minority view, on which the decision of the, Court does not rest, has got to be ignored in processing the decision. As in the case of Attwood v. Small discussed above the "real reason or the real ground of the decision" and the law derived from the judgments of their Lordships of the Supreme Court has got the binding force under Article 63 of the Constitution.

21. As mentioned above in the case of Syed Akhlaque Hussain all the six learned Judges composing the bench in the Supreme Court gave independent reasons for their judgments. In order to ascertain with accuracy the grounds upon which this decision rests, I must only look at the judgments of my Lords who decided the case and their judgments alone are of importance. Therefore, in considering the judgments in that case I have confined myself to the opinion of the five Lords who decided the case in favour of the appellant and with profound respect, I have got to ignore altogether the dissenting view expressed by B. Z. Kaikaus, J. Carefully considered, the following principles of law do emerge from that decision by the Supreme Court:‑ "Firstly that the unanimous opinion of all the learned Judges is that the undertaking given by the permanent Judges not to resume practice was altogether abrogated and washed away with the promulgation of the Retired Judges (Legal Practice) Order (XXI of 1962) in the case of Judges who had either "retired" or "resigned" from the office. Secondly, that Article 3 of the Retired Judges (Legal Practice) Order (XXI of 1962) in terms applies to Judges who had "retired" or "resigned" from Office and not to those who were "removed" there from. The separate judgments by S. A. Rehman, Fazle‑Akbar and Muhammad Yaqub Ali, JJ are based on this view but the learned Chief Justice and Abdus Sattar, J has differed with it. Thirdly, that the Legal Practice (Disqualifications) Ordinance (II of 1964) is intra vires inasmuch as (a) It is impossible to support the view that the Ordinance is void because it is contrary to the intention of the Constitution and the mere omission of a provision in the present Constitution corresponding to Article 166 (3) of 1956‑Constitution does not lead to any adverse inference in this behalf. This view was shared by the learned Chief Justice, Muhammad Yaqub Ali and Abdus Sattar, JJ. But S. A. Rehman and Fazle‑Akbar, JJ. preferred to reserve their opinion in this connection, and (b) The Ordinance does not impinge against Fundamental Right No. 8 preserving the freedom of the citizens to enter upon any lawful profession subject to any reasonable restrictions. This is the view of at least three of the learned Judges. The other two are silent; excluding the contrary opinion expressed by B. Z. Kaikaus, J." These are the grounds and the reasons enunciating the principles of law on which the decision of the Supreme Court is based. These principles of law have the . absolute binding force on all other Courts in Pakistan.

22. During the course of hearing, an argument was advanced before us that these conclusions deduced by me, are in conflict with the interpretation which was afterwards placed by the Supreme Court on its own judgment under discussion. It appears that after this judgment ; the Government filed an application before the Supreme Court to seek some clarifications. But the application was dismissed by the Supreme Court on 17th November 1965 with the following observations:‑ "By this Application, which purports to be one seeking clarification of this Court's judgment in the ease Government of Pakistan v. Syed Akhlaque Hussain what is really sought is application of the law there laid down to the case of each of three ex‑Judges of the West Pakistan High Court and one ex‑Judge of the Sind Chief Court, who, it is alleged are continuing to practice as lawyers before the West Pakistan High Court. It is not a function of this Court to apply the law laid down by itself, as in first instance. The Court is in the main a Court of appeal. Its original jurisdiction is specified in the Constitution, and falls within a narrow compass. If the petitioner Government is concerned that the law laid down by this Court in the case aforesaid should be applied in the case of the ex‑Judges mentioned above, it will be necessary to move the matter in appropriate form before the High Court, or a sub ordinate Court in the first instance. We are advised that the parti cular case which each of them can set up against application of a restriction against legal practice in Courts other than the Supreme Court or the High Court of which he was a member, is different from that of every other. Accordingly the application will require to be moved individually. We may add that it will be invidious for the State to pick and choose among the ex -Judges who are in actual practice, which of them the State will proceed against. It would also be most appropriate for each of the ex‑Judge to examine his own case, as against the principles laid down and the argument set out in our judgment, and to take the initiative himself, according to the conclusion he reaches." Evidently the Supreme Court declined to entertain that application on the sole consideration that it was not the function of that Court to apply the law laid down by it. At the same time their Lordships of the Supreme Court have emphasized that it would be most appropriate for each of the ex‑Judge to examine his own case, as against .the principles laid down and the arguments set out in the judgment delivered by them in this connection and to take the initiative himself, according to the conclusions he reaches. The principles to which the attention of the ex‑Judges was pointedly drawn by the Supreme Court can be no other than those on the basis of which the Court in the case of Syed Akhlaque Hussain found that he was debarred by virtue of the promulgation of the Legal Practice (Disqualifications) Ordinance, 1964 to practise in the Court in which he was presiding or the Courts subordinate thereto. I can see no escape from these conclusions from the judgment of the Supreme Court. It is difficult to hold that because of the differences of opinion among the learned Judges who wrote their separate judgments in that case, either the Supreme Court did not lay down any principle of law to be followed or that the principle, if any, laid therein is in their favour. However, on behalf of the respondents it was argued before us that it was quite easy for the Supreme Court to have clarified that the effect of the Ordinance was that it has disqualified each and every ex‑Judge of the Superior Courts from practising in them after their retirement, if that was its intention. Then where was the necessity for the Supreme Court to say that "the particular case which each of them (the ex‑Judges) can set up against application of a restriction against legal practice in Courts" is different from that of every other and that it would require separate applications to be moved against them individually. But the Supreme Court made those remarks in a different context. The Court was all the time conscious that within the narrow sphere of its original jurisdiction under the Constitution, it was none of its functions to apply the law declared by it to the ex‑Judges on the application made by the Government. For that purpose it was necessary for the Government to move the matter in an appropriate form before a competent Court of the first instance. This would envisage separate application against the ex‑Judges even though common questions of law are bound to be raised in them and naturally each of the respondents would have his own defence to plead on the facts of his case. Moreover, there was nothing to prevent them from raising any new ground of attack or plea open to them against the validity of the Legal Practice (Dis qualifications) Ordinance, 1964. Probably that was the stand taken by the respondents to the application of the Government before the Supreme Court for the clarification of its judgment. It was in this context that the Supreme Court barely noticed the contentions raised before it and declined to express its own opinion in the matter. The Supreme Court advi sedly refrained from expressing any opinion in those proceedings.

23. It now remains to examine some of the other contentions raised before us on behalf of the respondents.

24. For the respondents it was vehemently argued before us that all the ex‑Judges, including Sh. Muhammad Shaft, Advocate and Mr. Manzur Qadir, Advocate, were parties before the Full Bench of the High Court of West Pakistan which decided their cases together with the case of Syed Akhlaque Hussain, Advocate in their favour after hearing the parties. The Central Government of Pakistan at first applied to the Supreme Court for Special Leave to Appeal against the judgment of the High Court impleading all the Ex‑Judges, Syed Akhlaque Hussain, Sheikh Muhammad Shah, Mr. Z. H. Lari, Mr. H. B. Tyabji, Mr. Manzur Qadir and the Province of West Pakistan as the respon dents. But before the petition was admitted by the Supreme Court in motion, on 22nd April 1961 the Government applied to the Court to delete the names of Sheikh Muhammad Shaft, Mr. Z. H. Lari, Mr. H. B. Tyabji and Mr. Manzur Qadir from the list of the respondents. This prayer was allowed by the Supreme Court and in consequence the appeal was pressed against Syed Akhlaque Hussain alone. In these circumstances, it was vehemently argued, before us that so far as the present respon dents are concerned the Central Government had purposely withdrawn the appeal filed against them and the decision by the Full Bench of the High Court in their favour was never reversed qua them. It is, therefore, final and binding between the parties.

25. In order to properly appreciate this argument it is necessary to examine in greater detail the circumstances under which the cases of the two respondents were heard together with the main case brought by Syed Akhlaque Hussain in the High Court before the Full Bench. As regards Sh. Muhammad Shafi, Advocate a similar question concerning him was raised in another case. He appeared as a counsel in Writ Petition No. 83 of 1964, Khan Muhammad Khan and Saifullah Khan v. Government of Pakistan, on the 26th of February 1964, before a Division Bench of this Court and expressed his desire to associate himself with the representation made by Syed Akhlaque Hussain under con sideration by the Full Bench. On this the Division Bench passed the following order :‑ "Learned counsel who is an ex‑Judge of this Court, states that he wishes to associate himself with the representation made in another case by Mr. Akhlaque Hussain and requests that this case also be referred to the Full Bench which is being constituted to deal with that representation. Adjourned sine die. The learned counsel states that he will put in his written grounds today." Accordingly Sh. Muhammad Shaft, Advocate, filed the application under section 151, C. P. C. in the case in which he was engaged as a counsel. But the office registered it as a separate Writ Petition No. 509 of 1964‑"In the matter of Sh. Muhammad Shah, Advocate." In his petition, Sh. Muhammad Shaft, Advocate, challenged the validity of the Ordinance for reasons similar to those raised by Syed Akhlaque Hussain. But there is no separate order passed by the Chief Justice referring his case as well to the Full Bench.

26. At the time of the hearing of the case of Mr. Akhlaque Hussain, Mr. A. K. Brohi, Advocate appeared before the Full Bench and stated that he would also argue the case on behalf of Mr. Tyabji and Mr. Manzoor Qadir. As the point at issue was important, the Full Bench allowed Mr. Brohi "to present the case of these gentlemen also". The Memorandum of Appearance, dated 28th May 1964, signed by Mr. Brohi is on the file and shows that he was engaged to appear before the Full Bench on behalf of Mr. Manzur Qadir, Sheikh Muhammad Shafi and Mr. Tyabji.

27. Before the Full Bench Mr. Tufail Ali A. Rahman, Attorney‑General, appeared for the Central Government of Pakistan and Sheikh Ataullah Sajjad, Additional Advocate General appeared to represent the Government of West Pakistan.

28. There is no order impleading Sheikh Muhammad Shafi or Mr. Manzur Qadir as parties in the matter relating to Syed Akhlaque Hussain. In the Writ Petition No. 509 of 1964 by Sh. Muhammad Shaft (which in fact was an application under section 151, C. P. C. in Khan Muhammad Khan and Salfullah Khan. The Government of West Pakistan and others an actual date notice of the hearing was sent by the High Court to the Attorney General of Pakistan, Karachi, for 25th MAY 1964. Under clause (3) of Article 36 of the Constitution he has the right of audience in all the Courts in Pakistan. The Central Government of Pakistan as such was not a party to any of those matters heard by the Full Bench. But in view of the fact that a substantial question of Constitutional importance was being raised in connection with a Central Law, the Attorney‑General of Pakistan had intervened at the time of the argument, without impleading the Government as a party to the case, on the analogy of the provisions of Rule 1, Order XXVII‑A of the Code of Civil Procedure.

29. Strictly speaking the provisions of the Code of Civil Procedure are not applicable to the proceedings under Article 98 of the Constitution. But the broad principles of the Code are nevertheless generally followed in regulating the procedure before the High Court in such cases. Order XXVII‑A rule 1, C. P. C. lays down:‑ "In any suit in which it appears to the Court that (any substantial question as to the interpretation of constitutional law) is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for Pakistan if the question of law concerns the Central Government and to the Advocate‑General of the Province if the question of law concerns a Provincial Government." In this respect rule I is materially different from rule 2 of Order XXVII‑A, which provides:‑ "The Court may at any stage of the proceedings Order that the Central Government or a Provincial Government shall be added as a defendant in any suit involving any substantial question as to the interpretation of constitutional law if the Attorney‑General for Pakistan or the Advocate‑General of the Province as the case may be, whether upon receipt of notice under rule 1, or otherwise, applied for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved." Under rule 1 the Advocate‑General of the Province or the Attorney‑General of Pakistan has a right to intervene without impleading the Provincial or the Central Government as a party. Thereby, the Government does not become a party to the case. It is only under rule 2 that the Government is to be added as a party, if necessary. Order XXVII‑A was inserted by the I Civil Procedure (Amendment) Act, XXIII of 1942 as a result of the invaluable opinion expressed by Gwyer, C. J. in United Province v. Mst. Atiqa Begum and others (AIR 1P41 F C 16) which brings out this distinction.

30. This would mean that the decision of the Full Bench of this Court in the matters relating to Ssed Akhlaque Hussain and others was not binding on the Central Government of Pakistan who was not a party before the High Court. Never the less, the Central Government decided to file the petition for Special Leave to Appeal to the Supreme Court against that decision and at first impleaded Syed Akhlaque Hussain, Sheikh Muhammad Shafi; Mr. Z. H. Lari, Mr. H. B. Tyabji, Mr. Manzur Qadir and the Province of West Pakistan as the respondents in the petition. But afterwards for reasons best known to it, the Central Government retained Syed Akhlaque Hussain and the Province of West Pakistan as the only two respondents in the petition before the Supreme Court and gave up the rest of them. The Supreme Court granted the necessary leave to the Central Government to appeal against them alone. In these circumstances, the only effect of the withdrawal of the petition for special leave to appeal before the Supreme Court against Sheikh Muhammad Shafi and Mr. Manzur Qadir and others, that I can visualise is that the Government was precluded from instituting any fresh petition for leave to appeal in that case against them before the Supreme Court. Basically the judgment of the High Court was not binding on the Central Government and the withdrawal of the application for special leave to appeal against the respondents in the Supreme Court cannot transform it to have any greater validity.

31. There is yet another aspect of the case. The admission of Advocates to the rolls is regulated by a licensing system under the law. Till recently the basic law in this respect was the Bar Council Act (XXXVIII of 1926), section 8(1) of the Act provided) that no person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of Advocates of the High Court maintained under the Act. The rules to regulate the admission of persons to be advocates of the High Court were framed under section 9 of that Act. Section 14 of the Act provided that an Advocate shall be entitled to practise in the High Court of which he is an Advocate, any other Court in Pakistan and before any other Tribunal or person legally authorised to take evidence. Similar provisions have now been introduced by the promulgation of the Legal Practitioners and Bar Councils Act (III of the 1965). Section 30 of the Act prescribes the qualification of a person eligible for admission as an Advocate. After his admission as an Advocate, his name entered on the rolls of Advocates maintained by the Provincial Bar Council under section 23 of the Act. Section 22(2) of the Act lays down that subject to the Act and the rules made there under and any other law for the time being in force, an Advocate shall be entitled as of right to practise throughout Pakistan, and to appear, act and plead before any Court or Tribunal in Pakistan. Under this section the right of audience conferred on the Advocates is expressly made subject to any other law for the time being in force. In America the right to practice is regarded as `not an absolute right but a privilege or a franchise'. Field; J. in Ex parte: A. H. Garland ((1873) 18 Law Ed. 366) observed: "They (the Advocates) are officers of the Court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private practice" On the authority of `4 Ame Cyc. 896‑897 P. R. Iyer in his book on "The Law Relating to Legal Practitioners in India and Pakistan'." on page 11, 1951 Edition, has stated:‑ "The licence to practise law is not a contract, investing the person to whom it is granted with rights which cannot be interfered with by the state, but a naked grant of a privilege, which the state may revoke, or upon which it may impose such conditions as may be demanded in the public interest." Under section 3 of the Legal Practice (Disqualifications) Ordinance (11 of 1964) notwithstanding anything contained in any other law to the contrary, an Advocate on the rolls of the High Court, who was previously a Judge of that Court, is disbarred from pleading or acting in that Court and Courts subordinate thereto after his retirement. It appears to me that if a question arises as to whether an Advocate is qualified to plead and act for a party to a case or in a Court, truly speaking there is no lis, as if between one party and another concerning their rights and liabilities. It is really a matter between the Court and its officer. The Court merely exercises a disciplinary jurisdiction over its own officers. This Court in accordance with the decision given by the Full Bench was at one time of the opinion that the provisions of the Legal Practice (Disqualifications) Ordinance, 1964, were ultra vires of the Constitution and did not prevent the retired Judges of the Court to practise before it. But the Supreme Court has dissented from that view and held that the Ordinance is ultra vires and a valid piece of legislation. Conse quently the High Court in super cession of its earlier opinion must apply the law declared by the Supreme Court to the Advocates appearing before it. It cannot recognize the presence of those learned Advocates who are debarred under the law from appearing and acting before it. This, as I have said before, is essentially a matter concerning the Court itself and it would be incorrect to import into it the ordinary notions of res judicata and the finality of judgments, which are relevant only between the parties. The Court is not at all precluded to see and check up, as often as it may be necessary, that learned Member of the profession who enters its portals is holding the requisite credentials and is not otherwise debarred from the right of audience before it. The Court cannot recognize the presence of a learned Advocate, for a party in a case as it comes up for hearing before it, if he is debarred under the law from appearing before it. I am conscious of the other view that strictly speaking the decision of the Court concerning the right of an Advocate to appear before it, is res judicata and binding between the parties to the case in which it is pronounced and must be confined to the facts and circum stances of that particular case only: so that it cannot operate as a bar when the same question has cropped up afresh for decision in another case between different parties. On this view also the respondents cannot take shelter behind the decision of the Full Bench of this Court in their favour. But with utmost respect for the weight this view has held, on my part I have preferred to adhear to the opinion expressed above to the effect that in a matter like this concerning the Court and its officers, there is really no lis between the parties to the case in which the question might have been raised. It involves much wider question not confined to a particular case only, as to the scope of the franchise conferred on an ex‑Judge of this Court to practise before it after his retirement.

32. Meanwhile there was another noteworthy development which deserves to be mentioned here. After the decision by the Supreme Court in the Government of Pakistan v. Syed Akhlaque Hussain, on 5th July 1965, Mr. Manzur Qadir was appearing as a counsel for one of the parties in Mr. Saeed Ahmad v. Azmat Khan and others (Criminal Original 36 of 1965) before a Full Bench of this Court. When he was about to put a question to a witness examined in Court, Mr. (now Mr. Justice) Shaukat Ali, the learned counsel for the petitioner in that case raised an objection to his appearance on the strength of that decision by the Supreme Court. His objection was that the Supreme Court has held that the Legal Practice (Disqualifications) Ordinance, 1964, was intra vires for all purposes and that not only Syed Akhlaque Hussain but Mr. Manzur Qadir, Sheikh Muhammad Shafi and others were also debarred from appearing in this Court. But the Full Bench over‑ruled this objection raised before it. The Court relying on the observations made by the learned Chief Justice of Pakistan in his judgment under reference to the effect that the decision of the Court would be effective only in relation to the case of Syed Akhlaque Hussain and that the Ordinance was valid so as to prevent him from appearing in Writ Petition No. 66 of 1963, New Chaudhury Bus Service v. Member, Board of Revenue, as a counsel, held that order passed by the Supreme Court must be interpreted in that light. The Full Bench, therefore, concluded:‑ " . . . . . and with utmost respect it appears to us clear that it was not held by their Lordships of the Supreme Court that Mr. Manzur Qadir is disqualified by the judgment from appearing in this Court.", and over‑ruled the objection raised before it by Mr. (Now Mr. Justice) Shaukat Ali. Consequently the Full Bench allowed Mr. Manzur Qadir to resume the cross‑examination of the witness. It was, therefore, argued that this interpretation by the Full Bench is binding on us and the respondents are not debarred from appearing in this Court. A judgment of the Supreme Court has two aspects. Its primary object is to settle the dispute finally between the parties to it. It is the last word between them. Looking at the judgment of the Supreme Court under consideration (In re: Government of Pakistan v. Syed Akhlaque Hussain), with due deference the Full Bench was right in holding that their Lordships of the Supreme Court has nowhere held that apart from Syed Akhlaque Hussain, Mr. Manzur Qadir or anybody else was disqualified from appearing in any case pending in this Court. But there is the other and by no means a less important purpose behind the judgments of the Supreme Court in this country. As a precedent, the decision of the Supreme Court to the extent it decides a question of law or is based upon or enunciates a principle of law, it is binding on all other Courts under Article 63 of the Constitution. This aspect of the judgment of the Supreme Court in the case of Syed Akhlaque Hussain, was never considered by the Full Bench in over‑ruling the objection raised before it against the appearance put in by Mr. Manzur Qadir. There was no finding by the Full Bench on that part of the case. The attention of the Full Bench does not appear to have been drawn towards it. Under the circumstances I feel free to apply the law declared by the Supreme Court in the judgment under discussion to the respondents and the opinion expressed by the Full Bench is no bar to this decision by me.

33. To recapitulate, in the case of Syed Akhlaque Hussain, the Supreme Court has held that the provisions of the Ordinance are not in conflict with the Fundamental Right No. 8 of the citizens to follow any lawful trade or profession without any unreasonable restrictions imposed on them. The Court was also of the opinion that undertaking given by any of the permanent Judges of this Court at the time of their appointment to the effect that after their retirement or resignation from service they shall not practise as Advocates in this Court and also in the Courts subordinate thereto, was altogether abrogated and completely effaced with the promulgation of the Retired Judges (Legal Practice) Order (21 of 1962). The decision of the Supreme Court to the extent that it has laid down these principles of law is binding and the parties or any of them cannot be heard to raise these questions afresh before us. Faced with this situation, the respondents have launched an attack against the validity of the Ordinance on a new ground. On their behalf it was vehemently contended before us that in fact the Ordinance has attempted to alter the terms and conditions of service of the Judges of the Superior Courts by providing that they shall not practise in those Courts after their retirement and for that reason, in any case, the Ordinance is ultra vires of Article 124 of the Constitution. S. A. Rabman, J., in his separate judgment in the case of Syed Akhlaque Hussain while reserving his opinion, on this precise question observed: "It is a question of nicety whether, even if this subsequent legislation is to be regarded as competent to repeal the Retired Judges (Legal Practice) Order, 1962, which had acquired the status of a Central Act, the conditions of service attaching to a High Court Judge could be the subject of legislation by the Central Government or whether it had to be regulated by a constitutional provision alone". He then added: "It would perhaps be advisable for Government to place the matter beyond controversy, if the policy with regard to practise by former Judges is settled by an amendment of the Constitution in the relevant aspect." Similarly, Fazle‑Akbar, J. on the basis of his conclusion that Syed Akhlaque Hussain having been removed from the office of a Judge was bound by the undertaking given by him that he shall not resume practice, deemed it unnecessary to go into the question as to whether the Ordinance was ultra vires. In this very connection Muhammad Yaqub Ali, J. has in passing observed : "I agree with the view that the qualification to which Judges may be subjected should be provided for in the Constitution and not by or under a Law, a process which may seriously affect their independence, . . . . .. .". It does not appear that the attention of the learned Chief Justice and Abdul Sattar, J., was drawn to this question in the form in which it has been now raised before us. However, the minority judgment by B. Z. Kaikaus, J., in that case largely proceeds on this basis.

34. It is, therefore, open to us to take notice of this new argument now advanced before us in this case. Article 124 of the Constitution is as under:‑ "The remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Second Schedule." And the relevant provisions of Second Schedule relating to the High Court are:‑ "(1) There shall be paid to the Chief Justice of a High Court a salary of Rs. 5,000 per mensem, and to every other Judge of a High Court a salary of Rs. 4,000 per mensem. (2) Every Judge of a High Court of a Province shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court of the Province were entitled." By contrast, these provisions are materially different from the provisions in Article 149 which lay down that the Chief Election Commissioner shall be entitled to the same salary and allowances as a Judge of the Supreme Court and his other terms and conditions of service shall be determined by the Act of the Central Legislature or, until so determined, by rules made by the President. Similarly in the case of a Member of the Public Service Commission it is provided in Article 182(2) that the terms and conditions of his service, shall be determined by Act of the Central or Provincial Legislature or, until so determined, by the President or the Governor according as the case may be. Also in the case of the Comptroller and Auditor‑General of Pakistan; Article 191(2) of the Constitution lays down that the terms and conditions of his service shall be determined by Act of the Central Legislature or until so determined, by rules made by the President. However, the terms and conditions of service of the Judges of the superior Courts are in no way dependent upon any Act of the Legislatures. Basically these are specified in the Constitution. This is very necessary in order to preserve the independence of the judiciary. These provisions are also in keeping with the position in most of the other countries where the terms and conditions of service of the Judges of the Superior Courts are laid in the Constitution or determined by the head of the State and are secured against any interference by the Legislature. In the Second Schedule to our Constitution the salary of the Judges is specified. Every Judge of the High Court of a province is entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President. In this connection even the powers of the President are circumscribed. Beyond that and in other respects the Judge is entitled to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court of the Province were entitled. Immediately before the commencing day, the 8th June 1962, according to the law as it was then prevailing, the Judges of the Superior Courts were entitled as of right to plead and act in them after their retirement. It is, therefore, argued that this right is assured to the Judges by the Constitution and could not be curtailed by means of the impugned Ordinance of 1964. At first I bad thought that there exists a real distinction between the condition on which a Judge is appointed to the office and the terms and conditions of the service. But I must confess that this distinction is without any difference in view of the pronouncement of the Supreme Court in a previous case of Sayed Akhlaque Hussain v. The Judges of the High Court of West Pakistan (P L D 1961 S C 431) which I am bound to respect fully follow. In that case the Supreme Court was considering as to whether the undertaking, given by Mr. Akhlaque Hussain, as "a condition of appointment", as a permanent Judge of the High Court of Judicature at Lahore in 1954, to the effect that he shall not resume practice in that Court after his retirement, would hold good after he became a permanent Judge of the High Court of West Pakistan established on the 7th of October 1955, in other words whether the undertaking given by him in 1954 was sufficient to prevent him from practising in this Court after it was established. In the opinion of the Supreme Court Article 6 of High Court of West Pakistan Order, 1965, provided that the Judges of the High Court at Lahore who held their appointments immediately before the Constitution of the West Pakistan High Court had to hold their respective offices in the High Court of West Pakistan "on the same terms and conditions" as were applicable to them immediately before. Similarly Article 6 of the Laws (Continuance in Force) Order, 1958, has laid down that every person who immediately before the 7th of October 1958 was m office as inter alia, a Judge of High Court shall continue in the said office "on the same terms and conditions and shall enjoy the same privileges, if any". In the light of these provisions of the law, the Supreme Court was of the view that a stipulation) of this kind is to be regarded as a term and condition of the' service of the Judge that he shall not be entitled to practise in the Court from which be was retired or removed. In this connection the Supreme Court observed: "Syed Akhlaque Hussain attempted to draw a distinction between "terms and conditions of service" as used in Article 6 of the Laws (Continuance in Force) Order, and such a provision as is contained in Article 166 (3) of the late Constitution. He argued that "terms and conditions" related to such matters as salary, pension, privileges, leaves, other allowances, etc. being matters capable of being provided for otherwise than by a provision in the Constitution or amendment thereof. We do not consider that the distinction holds good in the present case. It is perfectly clear that the relevant provision in Article 166(3) is in essence the same condition of appointment which was incorporated 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."

35. Immediately before the "commencing day" the Retired Judges (Legal Practice) Order (21 of 1962), promulgated on the 2nd of June 1962, was in force. Under section 3 of this Order the Judges of the Superior Courts were as of right entitled to be enrolled as Advocates in these Courts after their retirement and had a right of audience in them. Therefore, this right and privilege was guaranteed in favour of the Judges by virtue of the provisions of Article 124 read with the Second Schedule of the Constitution. Such a term and condition of service of a Judge of this Court cannot be altered by any Act of the Central Legislature. Conse quently the impugned Ordinance is ultra vires qua those Judges to whom this protection afforded by Article 124 of the present Constitution is available. Prima facie the Central Legislature is not even competent under the Third Schedule of the Constitution to legislate about the terms and conditions of the service of a Judge of the superior Courts. The Legal Practice (Disqualifications) Ordinance (II of 1964) was promulgated by the President in the exercise of the powers vested in him under Article 29 of the Constitution when the National Assembly was not in session. But by virtue of clause (5) of Article 29, the power of the President in this respect to make laws by making and promulgation of Ordinances extends only to the making of laws within the legislative competence of the Central Legislature. In other words it is strictly confined to the matters enumerated in the Third Schedule only. I am fully conscious that under Article 133, the responsibility of deciding whether a Legislature has power under this constitution to make a law is that of the Legislature and that the validity of a law cannot be called in question on the ground that the Legislature by which it was made had no power to make the law. It is a question as to whether the responsibility of the Legislature in this respect also extends to the Ordinances promulgated by the President by virtue of the powers vested in him under Article

29. But; on the strength of the authority of the Supreme Court in Mr. Fazlul Qadir Chaudhry v. Mr. Muhammad Abdul Haque (P L D 1963 S C 436) I feel greatly encouraged to say that the ban imposed by Article 133 of the Constitution against judicial review of laws is not an absolute one. Articles 131, 132 and 133 have to be read together, So construed Article 133 will only bar an enquiry by this Court into the question whether a matter was within the Third Schedule or outside it in the competence of the Provincial Legislature.) The jurisdiction of the Courts in respect to all other matters was never taken away by Article 133 of the Constitution, I have referred to the provisions of the Third Schedule solely to demons trate that the terms and conditions of service of the Judges of the Superior Courts are protected by the Constitution under Article

124. This matter is conspicuous by its very absence from the Third Schedule relating to matters within the competence of the Central Legislature. Therefore, this Court is fully seized of the matter before it and is not debarred from declaring that the provisions of the Ordinance are repugnant to the protection afforded by Article 124 in this respect.

35. It is now necessary to examine the impact of these findings on the two cases before us. Sheikh Muhammad Shafi retired as a Judge of the High Court of West Pakistan on the 6th of November 1960. This was at a time when the provisions of Article 166 (3) of the 1956 Constitution were continued in force under Article 2 of the Laws (Continuance in Force) Order, 1958. At the time of his retirement there was an absolute prohibition against him not to plead or act in this Court or any Court or authority within its jurisdiction. It was only afterwards that with the promulgation of the Retired Judges (Legal Practice) Order (21 of 1962) on the 2nd of June 1962, that the bar was lifted and he became entitled to freely practise in these Courts. The present Constitution came into force only after his retirement and as such he cannot benefit by the provisions of Article 124 who are not applicable to him. In Ghulam Muhammad v. Government of Pakistan and others (P L D 1964 Lah. 117) a Full Bench of this Court has held that the provisions of Article 126 (2) of the present Constitution are not applicable to a Judge who had retired before it came into force. On the same reasoning, no doubt is left in my mind to hold that Article 124 of this Constitution is not attracted to the case of the ex‑Judges who had retired before the "commencing day" In these circumstances it cannot be said that the provisions of the Legal Practice (Disqualifications) Ordinance, 1964, have in their application to Sheikh Muhammad Shafi, Advocate resulted in changing any of the terms and conditions of his service as a Judge of this Court. It would be too much to say that so far as he is concerned, the terms and conditions of his service as a Judge were retrospectively changed by the promulgation of the Ordinance in the year 1964. Therefore, the provisions of the Ordinance cannot be held to be ultra vires qua him. They are valid to prevent him from appearing in this Court in Messrs Hyder Automobiles Ltd. v. Pakistan (R. F. A. No. 55 of 1962) as a counsel for the appellants. The Civil Miscellaneous No. 439‑C of 1966 by the Advocate‑General, West Pakistan is, therefore, allowed. But there shall be no order as to costs under the circumstances of the case.

36. As regards Mr. Manzur Qadir, Advocate, he was appointed as the Chief Justice of this Court on the 18th of October 1962, under the present Constitution and he resigned from the office on the 30th of September 1963. At the time of his elevation and subsequent resignation the provisions of the Retired Judges (Legal Practice) Order (21 of 1962) were in force and he was entitled to resume practice in this Court after his resignation. On his appointment he gave no undertaking that he shall not revert to practise law in this Court after his retire ment or resignation. While working as the Chief Justice of this Court he did not suffer any such disqualification against resuming practice in these Courts. The terms and conditions of his service which were applicable to him in his capacity as the Chief Justice of this Court cannot now be altered by means of the impugned Ordinance. Therefore, the Ordinance is ultra vires qua him and is not valid to prevent him from appearing in this Court as a counsel in the cases specified in the Civil Miscel laneous No. 2847 of 1966, filed against him by the learned Advocate‑General of West Pakistan. This petition is accordingly dismissed, but there shall be no order as to costs. R. B. A. Application accepted.