P L D 2001 Karachi 60 (PLP)

S. AHMED SARWANA, J.

Abdul Wahid the owner of a House bearing C.S. No.920-925, Ward D Ratodero filed an ejectment application (Rent Application No.27 of 1969) in the Court of Civil Judge and Rent Controller, Ratodero, against Ali Muhammad which was allowed by order, dated 29-3-1971. Ali Muhammad filed an appeal before the District Judge, Larkana, who dismissed the same by order, dated 2-2-1972. Thereafter, Ali Muhammad filed a Second Appeal in the High Court (2nd Appeal No.129 of 1972) which was allowed by Judgment, dated 21-1-1979 whereby the orders of both the Rent Controller and the District Judge were set aside and the case was remanded to the Rent Controller for a fresh decision. After promulgation of Sindh Rented Premises Ordinance, 1979 ("SRPO") the case was transferred to the Second Senior Civil Judge and Rent Controller, Larkana who allowed the application by his order, dated 31-5-1980. Ali Muhammad filed an appeal against the said order but it was dismissed for non-prosecution. Thereafter, on or about 17-5-1983 Abdul Wahid filed Execution Application No. 1 of 1983 for execution of order, dated 29-3-1971. Both Abdul Wahid and Ali Muhammad died during the course of litigation and these proceedings are now being contested by their legal heirs. The learned Rent Controller issued a Warrant of Possession whereupon the heirs of Abdul Wahid on 21-12-1998 filed objections to the Execution Application which, inter alia, included the ground that the order sought to be executed was not in existence as the Decree-Holder had typed the wrong date of the order sought to be enforced. In response, Respondents Nos.2 to 9, the heirs of Abdul Wahid filed an application under section 153, C.P.C. for correction in the date of the order in the Execution Application from 29-3-1971 to 31-5-1980 on the ground that the error had occurred due to inadvertent clerical mistake. The petitioner opposed the application agitating that the application of the provisions of section 153, C.P.C. in rent proceedings were prohibited under section 20, S.R.P.O., 1979. However, the learned Rent Controller by his order, dated 9-10-1999 rejected the objection and allowed the correction in the Execution Application.

2. Being aggrieved by the Rent Controller's Order, dated 9-10-1999 allowing correction in the Execution Application the petitioners have filed the present Constitutional Petition against the respondents impleading the Rent Controller as well as the Province of Sindh through Secretary, Law Department. The ground taken by the learned counsel is that section 20 of the Sindh Rented Premises Ordinance, 1979 expressly prohibited the application of Civil Procedure Code to the proceedings before the Rent Controller except for summoning and enforcing the attendance of witnesses, compelling production or discovery of documents, inspecting the site and issuing commission for examination of witnesses or documents. Section 20 of S.R.P.O. reads as follows:-‑ "20(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance, have power of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the matters namely; (a) summoning and enforcing the attendance of any person and examining him on oath; (b) compelling production or discovery of documents; (c) inspecting the site; and (d) issuing commission for examination of witnesses or documents." He vehemently argued that the application under section 153, C.P.C. filed by Respondents Nos.2 to 9 for correction of the date and the order passed thereon by the Rent Controller was in violation of section 20 of the Sindh Rented Premises Ordinance, 1979 and was thus, without lawful authority and liable to be struck down. He submitted that the petitioners had filed the present petition because they did not have any alternate remedy to challenge the impugned order. He referred to Noor Elahi v. The State PLD 1966 Supreme Court 708 at 715 in support of his arguments that where a provision of a statute is clear, it is the duty of the Court to abide by the law and disregard the judgments of the High Court and the Supreme Courts of Pakistan.

3. We asked Mr. Kehar, learned counsel for the petitioner whether he was aware that there were several authorities of the Supreme Court of Pakistan wherein it had been held that the Rent Controller has complete discretion to follow any procedure he deems fit or the principles of procedure laid down in the Code of Civil Procedure. He replied that as a counsel for the petitioners his duty was to his clients which was to place the authorities which were in his client's favour and not those which were against him and therefore, he had not brought with him the authorities which were adverse to the interest of his clients. We were surprised to hear such a statement coming from a Senior Advocate of the High Court of Sindh, a Court well-reputed for its outstanding, upright, honest and competent lawyers. We shall deal with the duties and responsibilities of Counsel to the Court and his client in the later part of the judgment.

4. Upon refusal of Mr. Kehar, learned counsel for the petitioner to place all the law on the issue in question, we undertook the research ourselves and found several judgments of the superior Courts to decide the matter before us.

5. Section 16 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (This Ordinance has been replaced by S.R.P.O., 1979 in the Province of Sindh) provided that a Rent Controller appointed under the said Ordinance shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under Code of Civil Procedure. The said Ordinance thus, did not empower the Rent Controller to use or apply the provisions of the Civil Procedure Code except for the purposes of summoning and enforcing the attendance of witnesses and compelling the production of evidence only. However, in Ayub Khan v. Fazal Haq (PLD 1976 SC 422) where an Application under Order 9, rule 13, C.P.C. was filed for setting aside an ex parte order passed in a Rent Case the learned Supreme Court observed as follows:-- "As the Rent Controller is not bound by the Civil Procedure Code, the question of procedure and especially the procedure for affecting service on defendant is within his exclusive discretion, therefore, he would be entitled, in the exercise of his discretion, to follow the equitable principles of the Civil Procedure Code. Similarly, he would be free not to follow the technical provisions of the Code. But the converse does not follow, and because he has the discretion not to follow the provisions of the Civil Procedure Code, it does not mean that he has been divested of the discretion to follow the Civil Procedure Code when he considers it necessary so to do." Later, in Smt. Vidaya and others v Moorajmal, (1980 SCMR 267) the Hon'ble Supreme Court approvingly accepted the contention of the appellant that the principle of equity enshrined in Order 32, rule 7 of C.P.C. should be applied to rent cases. This was again reiterated in Muhammad Saleh v. Muhammad Shaft, (1982 SCMR 33) where the Rent Controller applying the provisions of Order 9, Rule 9 restored the ejectment application dismissed for default. The Supreme Court was pleased to observe:-‑ "??although the provisions of C.P.C. are not applicable in terms to the proceedings under the West Pakistan Urban Rent Restriction Ordinance yet the Rent Controller may, in his discretion follow and apply them if he considers it necessary to do so. (See PLD 1976 SC 422), and that in any case the principles thereof are applicable to the proceedings under the said Ordinance."

6. In view of the observations of the Hon'ble Supreme Court in the above referred cases, it is clear that the Rent Controller is at liberty to follow the provisions of Civil Procedure Code to conduct the Court proceedings and exercise his powers as a Rent Controller in light of the principles enshrined in and deduced from the provisions of C.P.C. to conduct the rent proceedings which are of civil nature so that the dispute between the parties may be resolved smoothly and expeditiously. His powers as a quasi-judicial officer are not confined to use the provisions of C.P.C. only to summon and enforce the attendance of any person and examine him on oath, compel production or discovery of documents inspect the site; and issue commission for examination of witnesses or documents. He also has wide discretion to follow any reasonable procedure he deems appropriate in the circumstances of the case to achieve the ends of justice which includes the use of the provisions of C.P.C. which is a tested and tried procedure followed in civil proceedings.

7. Even assuming for the sake of argument that the powers of the Rent Controller to exercise power of the Civil Court under the Code of Civil Procedure, 1908 are limited for the purpose as stated in section 20 of the Sindh Rented Premises Ordinance, 1979, we cannot overlook the provisions of Sindh Regulation IV of 1827 which are still in force. The said Regualtion reads as follows:‑ 26, "A Regulation prescribing the forms of proceedings of the Courts of Law in civil suits and appeals, and rules for the trial of the same ?..??????????? The law to be observed in the trial of suits shall be Act of Parliament and (Pakistan Laws) applicable to the case, in the absence of such Acts and Regulations, the usage of the country in which the suit arose; if none such appears, the law of the defendant; and, in the absence of specific law and usage, justice, equity and good conscience alone."

8. It is, therefore, clear that the Courts in the Province of Sindh in the absence of any law or procedure prescribed by Statute can follow the precedents of Sindh Chief Court, the High Court of Sindh and the judgments of the Supreme Court of Pakistan which are binding on all Courts of Pakistan. The usage of the principles and provisions of C.P.C., are evident from several judgments of the Supreme Court a few of which have been referred to above. We do not see any illegality in the Rent Controller exercising his powers with reference of section 153, C.P.C. by allowing amendment in the execution application. Even otherwise under section 26 of the Sindh Regulation IV of 1827, the Courts including the Rent Controllers in the absence of any specific law and usage, can apply the principles of justice, equity and good conscience. It was not necessary for Respondents Nos.2 to 10 (the Decree Holders) to mention any section of the Sindh Rented Premises Ordinance or any other law while filing the application. They could have filed the application without mentioning any provision of law and the Rent Controller would have entertained and passed orders on it applying the relevant law because it is the duty of the Court to apply the correct law Whether or not a litigant draws the attention of the Court to it. (Haji Abdullah Khan and others v. Nisar Muhammad Khan PLD 1965 SC 691 and Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner, 1972 SCMR 359). It may also be noted that mentioning of wrong provision of law in an application would not normally render it invalid (Mst. Baigan v. Abdul Hakeem and another 1892 SCMR 673).

9. It would not be out of place to add here that under section 20 of West Pakistan General Clauses Act, 1956, the authority which has the power to pass an order also has the power to add, amend, vary or rescind the same. This section is identical to section 21 of the General Clauses Act, 1897 which principle has been confirmed in Bashir Khan v. District Magistrate (PLD 1956 Lahore 892) and Firdous Spinning and Weaving Mills Limited and others v. Federation of Pakistan and others (PLD 1984 Karachi 522). Therefore, every Rent Controller has the power to amend or correct any error that may have occurred in his order, specially, if it involves correction 1 of an inadvertent clerical or typographical mistake.

10. The light of the above we have no doubt in our minds that the Rent Controller has wide discretion for conducting the proceedings before him and can resort to either the principles of C.P.C., apply the principles of justice equity and good conscience described in Sindh Regulation IV of 1827 or exercise his powers under section 20 of West Pakistan General Clauses Act, 1956 or allow an application for amendment of the execution application in a rent case. We do not find any irregularity or illegality in the exercise of jurisdiction or otherwise in the impugned order of the Rent Controller.

11. The petitioners also made Province of Sindh through Secretary Law Department, Sindh Secretariat, Karachi, as Respondent No.9 but have neither made any allegation nor have sought any relief against it. It is appears that the learned counsel impleaded Government of Sindh to overcome any objection that may be raised by the Writ Branch on the maintainability of the Petition and justify the Writ by misleading the clerks of the Writ Branch on the maintainability of the Petition. The action of the learned Counsel in making the Government of Sindh as Respondent No.9, was prima facie, mala fide which act cannot but be disapporved by this Court.

12. Before we proceed to discuss the duties and responsibilities of Counsels to the Court, it would be appropriate to take a bird's eye view of the concept of justice and its administration in a civilized society and especially in an Islamic State.

13. From the dawn of history fair justice has been placed as the ultimate goal of a civilized society. The Holy Prophet (p.b.u.h.) said "the previous nations were destroyed, because they let off persons of high rank and punished the poor and helpless". It is a historical fact that nations which do not provide justice to their citizens in accordance with law ultimately perish. It is pertinent to mention here that after insertion of Article 2A in the Constitution of the Islamic Republic of Pakistan, the principles andprovisions constituted in the Objective Resolution were made substantive part of the Constitution and consequently, the Injunctions of Islam as contained in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.) became the real, effective and positive law of Pakistan (Zaheeruddin v. The State, 1993 SCMR 1718 at 1774). It is, therefore, incumbent upon every citizen of Pakistan to ensure that all laws and his conduct conform to the Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h). In Surah Al-Maida V. Ayat 8, the Almighty ordains:-- "O ye who believe! Stand out firmly For Allah, as witnesses To fair dealing, and let not The hatred of others To you make you swere To wrong and depart from ?Justice. Be iust: that is ? Next to piety:...1 In Surah Al-Nahl XVI, Ayat 90, the Holy Qur'an enjoins:-‑ "Allah commands justice, the doing of good" In Surah Al-Nisa IV, Ayat 105, the Almighty has commanded:-‑ "We have sent down To thee the Book in truth, That thou mightest judge Between men, as guided by Allah." In Surah Al-Maida V, Ayat, 42, the Muslims have been directed to be equitable while administering justice: "If thou judge, judge ___________________

1. The Holy Qur'an, Translation by Abdullah Yusuf Ali, published by Sh. Muhammad Ashraf, Lahore (1983 Edition). Note.--All translations of the Ayaats of the Holy Qur'an in this Judgment are by the same author unless indicated otherwise. In equity between them; For Allah loveth those Who judge in equity." In Surah Al-Nisa IV, Ayat 58, Allah again reiterates his command to decide disputes between persons with Justice:-‑ "Allah doth command you To render back your Trusts To those to whom they are due; And when ye judge Between man and man, That ye judge with justice." In Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 at 424, the Supreme Court observed:-‑ "....The foundation of Islam is on justice. The Concept of justice in Islam is different from the concept of remedial justice of the Greeks, the natural justice of Romans or the formal justice of Anglo-Saxons. Justice in Islam seeks to attain a higher standard of what may be called 'absolute justice' or 'absolute fairness.'

15. It is indisputable that for proper administration of justice it is necessary that the parties who have knowledge of the facts present them in their true form before the Court and not conceal them. Accordingly, Allah ' has forbidden the Muslims from withholding or concealing the evidence relating to the issue to be decided by an arbiter. In Surah Al-Baqr II, Ayat 283, Muslims have been advised;-‑ "Conceal not evidence; For whoever conceals it, His heart is tainted With sin. And Allah Knoweth all that ye do." Similarly, in Surah Al-Baqr II, Ahyat 282, it is ordained that: "The witnesses Should not refuse When they are called on (For evidence)."

15. It would not be out of place to mention here that looking at their experience of administration of justice in England and the important role that the lawyers play in the system, a Committee headed by Lord Woolf in its First Report of 1996 entitled "Access to Justice" recommended several changes in the Rules of Civil Procedure which were approved by the English parliament and a new Civil Procedure Code was enforced in 1998. Under the Rules, the parties are required to disclose not only the documents which are in their favour but also those documents which are against them. Rules 31.6 relating to Disclosure and Inspection of Documents, reads as follows:-‑ 31.6 Standard disclosure - what documents are to be diclosed. Standard disclosure requires a party to disclose only? (a) the documents on which he relies; and (b) the documents which - (i) adversely affect his own case; (ii) adversly affect another party's case; or (iii) support another party's case; and (c) the documents which he is requried to disclose by a relevant practice direction." In order to give full effect to the aforesaid provision, it was felt necessary to take penal action against persons who make false disclosure statements. Consequently, a new proposed Rules 31/23 was apparently passed by the English Parliament this year which reads as follows:-‑ "False disclosure statements 31.23 (1) Proceedings for contempt of Court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth:"

16. According to Justice Douglas of the U.S. Supreme Court "...the. Pretrial procedure makes a trial less a game of blind man?s buff and a more fair contest with the basic issues and facts disclosed to the fullest practicable extent". United States v. Procter & Gamble Co., 356 US 677 (1958). The United States, Federal Rules of Civil Procedure ("FRCP") have been lately further amended to obtain full and complete disclosure of all relevant information of the dispute from the parties. The relevant Rule reads as follows: "Rule??? 26(a).

Required Disclosures; Methods to Discover Additional Matter. (1) Initial Disclosures.--Except to the extent otherwise stipulated or directed by order or local rules, a party shall, without awaiting a discovery request, provide to other parties:-‑ (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information; (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings; (C) ???. (D) for inspection and copying as under rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action, or to indemnify or reimburse for payments made to satisfy the judgment. Unless otherwise stipulated or directed by the Court, these disclosures shall be made at or within 10 days after the meeting of the parties under subdivision (t). A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures." "(26(e) Supplementation of Disclosures and Responses.--A party who has made a disclosure under subdivison (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the Court or in the following circumstances; (1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under. subdivision (a)(2)(b) the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due. (2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." (Underlining added) In case, the party fails to disclose, refuses to admit or makes a false and misleading disclosure, he is precluded from using such evidence at the trial and is also subject to penalty, as provided in Rule 37 of F.R.C.P.

17. The duties of the Muslims and their conduct in assisting the Court to do justice are also reelected in various Ayaat of the Holy Qur'an. In Sura Al-Baqr II, Ayat No.283 it has been enjoined:-‑ "283???? Do not suppress any evidence, for he who conceals evidence is sinful of heart; and God is aware of all you do".2 Similar principles have been enunciated in Sura Al-Nisa IV, Ayat No.135 as follows:-- "135. 0 ye who believe! Stand out firmly For justice, as witness To Allah, even as against Yourselves, or your parents, _______________________

2. Al-Qur'an. A Contemporary Translation by Ahmed Ali. Akrash Publishing, Karachi, 1986 Edition. Or your kin, and whether It be (against) rich or poor: For Allah can best protect both. Follow not the lusts ? (of your hearts), lest ye Swerve, and if ye Distort (Justice) or decline To do justice, verily Allah is well-acquainted With all that ye do." (Underlining added)

18. Keeping the aforesaid principles in mind, the Honourable Supreme Court of Pakistan in the case of Shukur Din v. Inamullah, PLD 1992 SC 67, while discussing the duties of Counsel to the Court to point out the correct law and procedure observed that:-‑ ".. .. All the parties and their Counsel were bound to assist the Court in pursuance of the rule of good conduct in the Court; namely, when seeking justice do iustice. The saluable (sic) rule of practice has also the support of Islamic Jurisprudence." (Emphasis added). Similarly, in the case of Muhammad Yaseen Khan and others v Government of Azad Jammu and Kashmir, 1991 MLD 2295, 2301, Manzoor Hussain Jillani, J., observed as follows: "

14. Before parting with the case, it may be placed on record that it is the duty of the Advocates, being officers of the Court, to carefully examine the briefs and ascertain the full facts from their clients before lodging a case in a Court of law. The Advocates must specifically obtain a vertification from the clients before lodging the case, with specific mention of earlier litigation on the subject-matter of dispute. The Advocates are equally repsonsible, if they take uP the briefs without ascertaining the true facts and in such case they would be deemed as a party to the vexatious claim."

19. It is often said that the institution of Vakils and the practice of Vakahat (advocacy) are contrary to the teaching of Islam and a good Muslitu should not take up the profession of law and invariably quote Akbar Allahabdi, the famous Urdu poet, who in a couplet referred to Advocates as the children of Iblees (Satan). This misconception and misunderstanding in our opinion, is based upon ignorance of the tenets of Islam, the complexities of modern day laws and the conduct of unscrupulous lawyers who violate the commands of Allah and all norms of justice laid down by the Superior Courts and the Rules of Professional Ethics. Let us examine what Islam and Muslim Scholdars say about the institution of Vakils f (Advocates/attorneys/agents) of a party prosecuting or defending claims in a Court of law. In the Holy Qur'an, Surah Al-Nisa IV, Ayat 105, it is said:-- "We have sent down To Thee the Book in Truth, That thou mightiest judge Between men, as guided By Allah: So, be not (used) As an Advocate by those who betray their trust; (Underlining added). Professor Ahmed Ali has translated the same Ayat, a little differently as follows:-‑ "We have sent down to you the Book containing the truth, in whose light you should judge among the people as God has shown you, and do not be a Contender for deceiver."' (Underlining added) From the above Ayat it can be inferred that Allah does not forbid advocacy on behalf of a person if that person is not deceiving, acting dishonestly or betraying the trust of another. Further, in the famous book of Figah Hanafi "Kitab Badaae As Sanaae" (Volume 6 Page 22) it has been observed that "In matters of Deen, goods and rights of men, appearance of a Person for another with the permission of the opposite party is permissible"' Qazi Tajuddin Abu Nasar Abdul Wahab Alsubki in his book entitled ________________________________ 3.???????? AI-Qur'an,. A Contemporary Translation by Ahmed Ali 4????????????? Islmi Nizam-e-Adl, Report, Islamic Ideology Council, Islamabad, 1984 Edition, Page 76. "Moeed Al-Nana Wa Mubayad Al-Nagm"5 has opined on the rationale and conditions of practice of Vakils as follows:-‑ In "Judicial System of Islam"6 , the learned author in Cahpter 7 relating to "Wakalah" (Agency and Attorneyship) has referred to various authorities, a few paragraphs of which are as follows:‑ ?

298. Wakalah is defined by the Fuqaha' as the appointment of another person to do the needful in a known transaction on behalf of the principal. Almost all the fuqaha are of the opinion that it is lawful. Ibn Qudamah, a Hanbali Jurist, in this connection, says: Wakalah is lawful according to the Holy Book, the Sunnah and the consensus. ?

299. Wakalah means agency including the act of representing a litigant or appearing on his behalf before the Court of justice in order to contest the dispute put up for decision". ?

305. The Rationale. The fourth and wonderful argument of the learned writer is rationale of Wakalah. He says that necessity demands it, because everyone cannot perform by himself what he has to do out of necessity. ?

306. Al-Marghinani, the Hanafite, has changed the arrangement of arguments and says: __________________________

5. Dr. Tanzilur Rehman, Islami Nizame Adalat, Published by Darul Tanzil, Karachi, page

15. The Quotation has been reproduced from this book.

6. Ghulam Murtaza Ali, Judicial System in Islam, Islamic Research Institute, International Islamic University, Islamabad, 1987 Edition, pp.106-112. It is lawful for a person to appoint another as his agent, for the settlement in his behalf of every contract which he might have lawfully concluded himself (Al-Hidayah, II), 177)." "

308. As for the Attorneyship at law, the erudite writer says in clear words that it is lawful for a person to appoint another as his agent for the management of a suit related to any rights whatsoever, and argues that everyone is not fully acquainted with the mode of contesting disputes. For support he adduces the precedent of Ali that he appointed Aqil and then Abd Allah b. Ja'far as his attorneys (in disputes)." It has been related by various scholars that the Holy Prophet (p.b.u.h.) had appointed Hazrat Hakim Bin Hazam as his attorney to purchase a sacrificial animal and appointed Hazrat Umer Bin Abi Salma as his attorney to contract a marriage.' It is often stated that the Holy Prophet (p.b.u.h) appointed Abu Rafeh as his agent to contract a marriage with Hazrat Memoona and Umar Bin Umayeh Zamiri as his agent to contract a marriage with Ume Habiba.8 It may, therefore, be safely concluded that the institution of Vakils (Advocates) and advocacy is neither forbidden as such by Shariah nor is it discouraged by Muslim Scholars as it helps and assists the aggrieved persons to obtain their lawful rights through the Courts.

20. Let us now examine what Islamic Law says about placing the correct law before the adjudicator to enable him to decide the issue in accordance with law and how different cultures and societies monitor the conduct of the legal profession. In this context Maududi in his Tafseer relating to Surah Al-Maidah 5, Ayaat 42-43, has referred to the following historical event from the life of the Holy Prophet (p.b.u.h.)9-‑ "??. it refers to a case of illicit relation between a man and a woman who belonged to respectable families of Jews of Khaibar. According to the Torah (Deut. 22:23-24), their punishment was that both of them should be stoned to death. As the Jews did not want to inflict this punishment, they decided that the case should be taken to the Holy Prophet and that they would accept his decision only if it ________________________

7. Adaab-ul-Qazi, Complied by Mehmood Ahmed Ghazi, Published by Idarah Tehqeeqat Islami, 1983 Edition, page 666.

8. Kitab-ul-Fiqah, Volume 3, Published by Department of Auqaf Punjab, Lahore 1979, page 171. ???????????

9. The meaning of Qur'an. Vol III, page 45, English Version, by S. Abul Ala Maududi, Islamic Publications Ltd., Lahore, 1972 Edition. was brought before him and he decreed that they should be stoned to death, but the Jews rejected it.. Then the Holy Prophet asked them what the punishment was according to the Torah. They replied that it was to flog the culprits and to blacken their faces and to mount them on a donkey. The Holy Prophet asked them to declare on oath whether that was the punishment for adultery committed by a married couple. They all but one answered that it was so. The one who had kept quiet was Ibn-e-Surya, who was considered to be the greatest scholar of the Torah by the Jews themselves. The Holy Prophet pointedly addressed him and asked. 'I want you to swear by that God who saved your people from the Pharaoh and gave your Law on the Tur, and answer whether it is this same punishment for adultery in the Torah that these people tell.' He said, 'I would never have confessed that the punishment for adultery is stoning the culprits to death, if you had not laid upon me such a heavy oath. . The fact is that when adultery became common among us, the judges would let the offenders go, if they happened to be big people. But as this differentiation caused a great discontent among the common people, we made a change, in the Law that instead of stoning the culprits to death they should be flogged and mounted on the donkey with blackened faces.' After this, no other course was left for the Jews, and the culprits were stoned to death by the order of the Holy Prophet." (Underlining added). It is apparent from the above proceedings that in an Islamic State it is the duty of the expert or the person knowledgeable in the law not to conceal but to place the correct law before the deciding authority.

21. Based upon the Rules of Professional Conduct for Lawyers of various States, American Bar Association has formulated its own Code of Ethics known as 'ABA Model Rules of Professional Conduct" and has suggested that all the States adopt the said Model Rules so as to bring uniformity in the whole country. Rule 3.3 of ABA Model Rules of Professional Conduct provides as follows:-‑ 3.3(a) A lawyer shall not knowingly:-- (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4)offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. (b) The duties stated in paragraph (a) cointinue to the conclusion of the proceeding, and apply even if compliance requires diclosure of information otherwise protected by Rule 1.6. (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts knwon to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. "10

22. Various Scholars and teachers of law have written extensively on the ethics of the legal profession and the duty of counsel to place before the Court all judicial authorities on the question in issue and especially the judicial pronouncements which are adverse to the contention propounded by him. The famous book on "Legal Ethics in the Practice of law" " contains the following passages which are relevant for our purposes:-‑ "(1) Disclosure of Adverse Authority.--The following article written by one of the ethics counsel at the ABA's Centre for Professional Responsibility, describes the perils of failing to cite adverse authority. But while the Court may appreciate full disclosure of adverse authority, a client may be quite unhappy with a lawyer who is completely honest with the Court, perceiving that lawyer as less than a zealous Advocate. Is it possible to be a zealous advocate and fully disclose adverse authority to the extent advocated in this article?" JOANNE PITULLA, PLAYING OSTRICH, ABA Jounral (August, 1993) Fundamental to a lawyer's role as an officer of the Court is the duty to disclose adverse authority or to describe that duty more precisely the legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." (See Model Rule 3.3(a)(3) and DR 7-106(B)(1) of the predecessor Model Code of Professional Responsibility). ______________________

10. Stephen Gillers, Roy D. Simon, Jr, Regulation of Lawyers, Statutes and Standards, Little, Brown & Company, New York, 1997 Edition, page 207.

11. Richard A. Zitrin and Carol M. Langford, Legal ethics in the Practice of Law, Michie Company, Charlottesville, Virginia, 1995 Edition. Many lawyers say, 'Why should I do research and supply argument for the other side? That's their job. My duty is to my client' But Courts must rely on lawyers to supply the . law that governs a particular case. As the Comment to Rule 3.3 says, 'A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.' The lawyer can then distinguish the authority or argue for a new precedent. Extent of Duty The duty to reveal adverse authority continues to the end of the case and must be met whenever the lawyers become aware of the precedent's existence. (See Model Rule 3.3(b).) The Standing Committee on Ethics and Professional Responsibility concluded in Informal Opinion 84-1505 (1984) that even when an issue is not presently under consideration but may be revisited, the lawyer who learns of a controlling Court decision that may be interpreted as adverse to the client's position must promptly advise the Court. Professors Hazard and Hodes 'The Law of Lawyering, '3.3:206 (2d ed. 1990), provide even more succinct guidance: '(The more N unhappy a lawyer is that he found an adverse precedent, the clearer it is that he must reveal it.' Playing ostrich can result in sanctions for the lawyer and the loss of the client's case. (Underlining added).

23. While discussing Rule 11 of the Federal Rules of Civil Procedure which relates to Pleadings, Representation to Court and Sanctions etc., the learned authors of "The Law and Ethics of Lawyering" 12 have observed: "A lawyer should not be able to proceed with impunity in real or feigned ignorance of authorities which render his argument meritless. See, e.g., Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 205 (7th Cir. 1985) In addition, Rule 11 is not the' only tool available to Judges in imposing sanctions on lawyers."

24. The English law relating to the conduct of counsel in Court is similar. Halsbury's Laws of England states, that:-‑ ?... Counsel is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession, and to the public, to ensure that it is achieved. Thus counsel must not mislead the Court. . . and he must bring all ________________________

12. Geoffrey C. Hazard, Jr, Susan P. Koniak, Roger C. Cramton, The Law and Ethics of Lawyering, Foundation Press Inc. New York, 1994 Edition, page 424. relevant authorities to the attention of the Court, whether Or not they assist the party for whom he appear."13 In the Madden's case, the Court went to the extent of observing that "If a case is listed for trial at a place where there is no library or there are not sufficient reference books or sufficient access to authority, then, it is counsel's responsibility to alert the Court to the fact and to seek to get the case transferred to a Court where the necessary material can be made available to the Court and can be used in argument".14

25. Similarly the Pakistan Legal Practitioners and Bar Councils Rules, 1976, Chapter XII relating to Canons of Professional Conduct and Etiquette of Advocates provide as follows:‑ "

160. An Advocate shall not advise a person whose testimony could establish or tend to establish a material fact to avoid service of process or conceal himself or otherwise to make his testimony unavailable." "161.??? An advocate shall-not intentionally misgoute to a Judge, judicial officer or jury the testimony of a witness, the argument of the opposing Advocate or the contents of a document; nor shall he intentionally misquote to a Judge or officer the language of a book statute or decision; nor shall he with knowledge of its invalidity and without disclosing such knowledge cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional. "163.??? The primary duty of an Advocate engaged in public prosecution is not to convict, but to see that justice is done. The suppression of facts or the concealing of witnesses capable of establishing the innocence of the accused is highly reprehesible. (Underlining added). The Pakistan Bar Council Rules relating to the duty of Advocates to the Court are not as exhaustive as those of many civilized countries of the world. However, Rule 161 expressly enjoins that an advocate shall not cite as an authority a decision that has been overruled. It, therefore, follows that it is also the duty of an advocate to bring to the knowledge of the Court the authority or decision of the Superior Court which is contrary to the arguments advanced by him and which may be adverse to the interest of his client. In view of the Injunctions of the Holy Qur'an "not to conceal any ____________________________

13. Halsbury's Laws of England, 4th Edition, Vol 3(1), para. 415.

14. R. v. Madden, (1975) 3 All E R 155 at 157. evidence even if it be against yourselves or your parents or relatives" which would include the statutory law or a principle of law pronounced by a superior Court applicable to the facts of the case, all Muslims and especially the Advocates must strictly comply with the commandment. Further, as an officer of the Court, it is the bounden duty of an Advocate to place before p the Court any adverse authority, especailly if it has not been cited by the opposing counsel, so that all the relevant law is before the Court to enable it to do justice in accordance with law and the Injunctions enunciated in the Holy Qur'an.

26. Keeping in mind the Injunctions of the Holy Qur'an and the duty of Counsel as an officer of the Court, the Honourable Supreme Court of Pakistan, in the case of Shukardin v. Inamullah and another, PLD 1992 SC 67 at 68 observed as follows:-‑ "He, however, vehemently argued that this defect should have been pointed out at the trial stage by the other side. But he failed to advance the point any further when questioned as to why the petitioner side did not perform the same duty to the Court--as all the parties and their counsel were bound to assist the?? Court in pursuance of the rule of good conduct in the Court; namely, when seeking justice do justice.`This salvable (sic) rule of practice has also the support of Islamic jurisprudence." (Underlining added).

27. It is, therefore, clear that in a civilized society and an Islamic Society is on a higher pedestal, it is the duty of every Muslim in general and an advocate/counsel in particular not to conceal the truth, which includes both the evidence and the law in relation to the matter in issue and place the same before the Qazi, i.e. the Presiding Officer of the Court. The advocate being an officer of the Court and upholder of Truth and Justice is subject to a higher degree of responsibility. It is his primary duty not only to place the law and reported judgments in favour of his client but also place before the Court the law and the reported judgments which may be against him and leave it to the Judge to decide the issue. Of course, he has the right to argue before the Court that the ruling which appears to be against him is either distinguishable or not applicable to the facts of his case or that it is not a correct interpretation of law according to him. He must in every case bring to the attention of the Court judgments which prima facie are against the proposition he is, advancing. If he does not do so, it would not only be contrary to Islamic Law but also contrary to the Rules of Conduct of an Advocate in Pakistan which is an Islamic Society.

28. It would not be out of place to mention here that from reading of the case files that come before us and watching the conduct of advocates in contentious matters, we have observed that the failure to fully disclose the relevant facts and law often leads to lengthy litigation resulting in waste of time and money of the litigants as well as the precious time and financial costs of the Court which can be utilized fruitfully for better and quicker administration of justice. The conduct of advocates which results in such waste is not praise-worthy and should not only be discouraged but should be subject to exemplary penalty in patently vexatious cases.

29. In light of the aforesaid short exposition of law, we may summarize the status and duties of an advocate in an Islamic Society as follows:-- (i) An Advocate is an Office of the Court and is duty bound to assist the Court in the administration of justice. (ii) He must, before taking up any matter on behalf of a client, ensure that the claim or defence is based upon truth, honesty and propriety. In case he finds that it is not so, he must decline to take up the matter on behalf of the client. (iii) He must disclose all material facts (evidence) and law including legal precedents to the Court. (iv) He must not knowingly conceal any material fact or legal authority from the Court and must bring to the notice of the Court all precedents relating to the case in issue and specially the adverse precedent or authority of a superior Court that governs the particular case, even if it be against the interest of his client. He may, however, express his opinion on the precedent and argue that the principle laid down in the cited precedent is either distinguishable or not applicable in the circumstances of his case. His duty to the Court would increase doubly if the adverse authority has not been cited or has been overlooked by the opposing counsel. (v) Any concealment or withholding of evidence or an adverse authority would be a clear violation of the Injunctions of the Holy Qur'an and the canons of Professional Ethics practised by civilized societies. (vi) To sanctify the duties enumerated above, it would be advisable for the legislature and the Pakistan Bar Council to amend the relevant laws to incorporate an Oath which all persons must take before entering the profession of law. We may mention here that the making of an oath has been recommended by the Islamic Ideology Council of Pakistan. We have, however, modified it a little in the light of our research stated above. The wordings of the Oath should be as follows:-- "I,???????????????????? son of .... do hereby make oath as follows:-‑ (a) That I shall perform my professional duties as an Advocate with honesty, propriety, integrity and with fear of Allah so that I may be truly helpful to the Court in arriving at a just decision. (b) That in every matter I shall place all the facts and evidence, relevant provisions of law and judgment of superior Courts, both for and against the proposition, before the Court without any hesitance whether it is in favour or against the interest of my client keeping in my mind that I am responsible to Allah, the omniscient, for all my acts and deeds. (c) The I shall not withhold or conceal from the Court any evidence, legal provision or judicial precedent of any superior Court of Pakistan especially the one which is adverse to the interest of my client." We may point out that the essential features of the proposed oath are not new to the lawyers in civilized states and are based upon the canons of professional ethics practised in England and USA except that the fundamental Q Rules of Professional Conduct have been prescribed in the form of an oath and the fear of God has been incorporated to bring it in line with our Islamic faith which is the basis of the creation of the Islamic Republic of Pakistan. 15

30. Before concluding, we would like to point out that after reading the Injunctions of the Holy Qur'an relating to the Administration of Justice, opinions of Muslim Scholars, the duties of Muslims including advocates to the Court and the Rules of Professional Conduct followed by civilized societies, it appears that the same have not been brought to the notice of legislature and the Pakistan Bar Council. We-hope that both the legislature and the Pakistan Bar Council shall seriously look into the matter and revise the relevant laws to bring them in conformity with the commandments of Almighty Allah so that the people of the Islamic Republic of Pakistan may stand proudly with other civilized societies of the world whose rules and ___________________________

15. For detailed discussion see (1) Injunctions of the Holy Qur'an referred to above (2) Islami Nizame-e-Adl, Supra, (3) Halsbury's Laws of England, 4th Edition, Vol 3(1), Supra and (4) ABA Model Rules of Professional Conduct in Stephen Gillers, Regulations of Lawyers, Supra. regulations have been found to be in conformity with the Islamic principleslF of justice.

31. In light of the above discussion, it is apparent that the conduct of Mr. Kehar, learned counsel for the petitioner, was not in accordance with the Injunctions of Islam or even the standards expected of an Advocate and an officer of this Court. It is a fit case in which counsel must be burdened with exemplary and punitive costs; however, this being the first case of its kind of which notice has been taken by us, we would refrain from imposing such costs which should unquestionably be imposed in future in similar , circumstances. The petition is dismissed in limine. Q.M.H./M.A.K./M-95/K???????? ??????????????????????? Order accordingly.