P L D 1963 (W (PLP)

Laws Cited

Representation

• -----Art. 3‑Enabling, not disabling provision‑[Case of "removed" Judge]‑Right to practise as Advocate‑Constitution of Pakistan (1956), Art. 166 (3)‑Laws (Continuance in Force) Order (I of 1958), Art. 6‑Constitution of Pakistan (1962)‑[Syed Akhlaque Husain v. The Judges of the High Court of West Pakistan P L D 1961 S C 431 ref.].
• Syed Akhlaque Husain and Ch. Muhammad Anwar Buttar for Petitioner.
• Ataullah Sajjad, Assistant Advocate‑General with Abid Hussain Minto for Respondent.
• SHABIR AHMAD, J.‑Two questions fall for determination in this case, one being whether the petitioner should be granted bail, and the other whether Mr. Akhlaque Husain, Advocate, can appear as a counsel.
• 3. The second question that arises may now be taken up. In order that one may have a clear picture of the matter that falls for determination, it is necessary to mention a few facts which I proceed to do. In 1953 when Mr. Akhlaque Husain was practising as an Advocate of the Federal Court of Pakistan and the High Court of Judicature at Lahore, he was appointed a Judge of the latter Court and became a permanent Judge of that Court in 1954. At the time of the coming into force of the Establishment of West Pakistan Act on the 14th of October 1955, Mr. Akhlaque Hussain, being a Judge of the High Court of Judicature at Lahore, automatically became a Judge of the High Court of West Pakistan by reason of a provision contained in the above‑mentioned Act. In 1959, Mr. Akhlaque Husain was removed from the office of a Judge of the High Court of West Pakistan by the President of Pakistan who acted on a report made by the Supreme Court of Pakistan on a reference made by the President. Some months after the removal of Mr. Akhlaque Husain from service, the Supreme Court of Pakistan, which has replaced the Federal Court of Pakistan, allowed him to practise in that Court on the expiry of a certain period from the date of the order of removal. In 1960, Mr. Akhlaque Husain wanted to appear before the Karachi Bench of the High Court of West Pakistan and argued that he could do so but did not convince the, learned Judges of the Karachi Bench of this Court that he could appear. It may be mentioned‑‑that‑ at the time of his being appointed a permanent Judge, Mr. Akhlaque Husain had given an undertaking which was in the following terms:‑
• 4. Against the order passed by the learned Judges of the Karachi Bench of this Court, wherein it was held that he could not appear as an Advocate in the High Court of West Pakistan, Mr. Akhlaque Husain presented an appeal in the Supreme Court of Pakistan. This appeal was dismissed on the 5th of June 1961 as would appear from Syed Akhlaque Husain v. The Judge of the High Court of West Pakistan (P L D 1961 S C 441). It is clear from the decision of the Supreme Court that it was held that clause (3) of Article 166 of the Constitution of the Islamic Republic of Pakistan, which continued to apply on account of Article 6 of the Laws (Continuance in Force) Order, 1958, was a bar to Mr. Akhlaque Husain's practising as an Advocate before the High Court of which he had been a permanent Judge and before Courts sub ordinate to it.
• 5. Mr. Akhlaque Husain's competence to appear as an Advocate before this Court appears to have been doubted by Firoz Nana, J., as one finds in the order by means of which interim bail had been granted to the petitioner a mention of the point relating to Mr. Akhlaque Husain. Before this Bench, Mr. Akhlaque Husain urged that as the Constitution of the Republic of Pakistan, which came into force on the 8th of June 1962, contained no provision similar to clause (3) of Article 166 of the Constitution of the Islamic Republic of Pakistan, which had come into force on the 23rd of March 1956 but was abrogated on the 7th of October 1958, he could appear as an Advocate before the Court in which he had sat as a Judge. The reply of Mr. Ata Ullah Sajjad, Assistant Advocate‑General, West Pakistan, was that the decision of the Supreme Court in Syed Akhlaque Husain v. The Judges of the High Court of West Pakistan stood in the way of Mr. Akhlaque Husain, and that as it was not open to this Court to go against the decisions of the Supreme Court of Pakistan it must be held that the contention raised by Mr. Akhlaque Husain has no merit. No one can doubt that a decision given by the Supreme Court of Pakistan is a binding precedent on all Courts in this country to the extent that the decision decides a question of law or is based upon or' enunciates a principle of law and, indeed, one finds a provision' to that effect in Article 63 of the Constitution of the Republic of Pakistan which came into force about six months ago, but it appears to me that the decision relied upon has no application to the question that falls for determination in these proceedings. I have indicated already that the decision of the Supreme Court on which Mr. Ata Ullah Sajjad placed his reliance merely said that clause (3) of Article 166 of the Constitution of the Islamic Republic of Pakistan, which is known as the late Constitution, debarred Mr. Akhlaque Husain from appearing as an Advocate before the Court in which he had been a Judge and before the Courts subordinate thereto. The present Constitution which repealed the Laws (Continuance in Force) Order, 1958, and thereby made clause (3) of Article 166 a dead letter, nowhere provides that a person who has been a permanent Judge of the Supreme Court or a High Court cannot appear in the Court of which he has been a permanent Judge or in any Court subordinate to that Court, and I am clear in my mind that the decision relied upon by Mr. Ata Ullah Sajjad, Assistant Advocate‑General, West Pakistan, has no application to the situation as it exists now.
• 6. The learned Assistant Advocate‑General also made a reference to President's Order No. 21 of 1962, [Retired Judges (Legal Practice) Order, 1962] dated the 30th of May 1962, which appeared in the Gazette of Pakistan Extraordinary dated the 2nd of June 1962, as Notification No. F. 2 (10)/62‑Legis., this order is in the following terms :‑
• 3. Enrolment and right to practise, etc.‑(1) Notwithstanding anything to the contrary contained in any other law or in any undertaking, a Judge shall, upon his retirement or resignation from his officer (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.
• (2) A person enrolled under the provisions of clause (1) shall take his seniority among the Senior Advocates of the Supreme Court or Advocates of the High Court, as the case may be‑
• (a) if he was, before his first appointment as a Judge, enrolled as a Senior Advocate of the late Federal Court or of the Supreme Court or as an Advocate of the High Court, from the day of his previous enrolment; or
• The contention raised by the learned Assistant Advocate‑General was that as the Order issued by the President made it clear that a Judge who has been removed from service could not be deemed to have the right to practise as an Advocate, Mr. Akhlaque Husain who had been removed from service could not practise as an Advocate. I cannot accept this contention because I am of the view that the Order issued by the President is enabling and not disabling. What I mean to say is that the Order confers a status on some persons specified therein but does not take away any status which any other law may confer on any person. It is clear that President's Order No. 21 of 1962 was issued to enable those Judges to practise as legal practitioners who did not possess a degree in law, but was not meant to apply to those Judges who possess such a degree. If a member of the Civil Service of Pakistan retires as a Judge or resigns from his post as a Judge of the Supreme Court of Pakistan or of a High Court in Pakistan, the President's Order No. 21 of 1962 will confer on him the right to practise as an Advocate but that Order need not be invoked by, a Judge who has retired or has resigned if he wants to practise as a legal practitioner provided he possesses a degree in law which entitles him to practise as an Advocate. It was not denied by the learned Assistant Advocate‑General that the name of Mr. Akhlaque Hussain existed on the roll of Advocates of this Court, and have no hesitation in holding that he is entitled to practise as an Advocate by reason of the existence of his name on the roll of Advocates unless he were disqualified from doing so on account of some law which is in force. Till the 8th of June 1962, there was a law in force which stood in the way of Mr. Akhlaque Husain's practising as an Advocate and this law, as already mentioned by me, was contained in Article 6 of the Laws (Con tinuance in Force) Order, 1958, which as far as Judges of a High Court were concerned kept alive clause (3) of Article 166 of the Islamic Republic of Pakistan which clause has been reproduced at the end of paragraph 3 above, but that provision of law became altogether inoperative on the 8th of June 1962; when the Constitution of the Republic of Pakistan came into force and the Laws (Continuance in Force) Order, 1958, was repealed. I am satisfied that the contention that President's Order No. 21 of 1962 stands in the way of Mr. Akhlaque Husain receives no support from the fact that the Order fixes the dates on which persons who had been Judges shall become entitled to get enrolled as Advocates because paragraph 3 (2) of the Order, which deals with this matter, is not relevant for the determination of the question whether or not a person who is enrolled as an Advocate of a High Court can practise as such if he had been a permanent Judge of that High Court. It is hardly open to question that the Order of the President is to be interpreted in precisely the same manner as an Act which had passed through the legislature lit may be safely asserted that unless the language of a statute, indicates otherwise it is to be presumed that it does not apply to matters regarding which a provision already exists. It is clear from clause (3) of Article 166 of the Constitution of the Islamic Republic of Pakistan, reproduced at the end of paragraph 3, that a person who had been a Judge" of a High Court was not pre cluded from appearing as" an Advocate in the Supreme Court and it would not be rash to infer that President's Order No. 21 of 1962 was not intended to confer on such of those persons who had been Judges of a High Court the right of practising as Advo cates in the Supreme Court which such persons may already have had. It follows, therefore, that the fact that a part of President's Order No. 21 of 1962 contains a provision whereby the dates of enrolment as Advocates of the Supreme Court and the High Courts are to be fixed cannot be of any assistance in the deter mination of the question under consideration. The view I take about the President's Order No. 21 of 1962 not being applicable to the present case is strengthened by reason of the rule of interpretation of laws which is to the effect that unless they provide otherwise laws which confer rights or place disabilities are to apply to those cases only which clearly fall in their ambits. Looked at from this point of view the President's Order under consideration cannot be deemed to have been meant for cases of those persons who on the date that the Order was issued had a right of practices as Advocates of the Supreme Court in spite of the fact that they had been Judges of a High Court of which persons, Mr. Akhlaque Husain was undeniably one. It is undeniable that even if clause (3) of Article 166 of the Islamic Republic of Pakistan had continued to be applicable and President's Order No. 21 of 1962 had not been issued Mr. Akhlaque Husain was not debarred from practising in the Supreme Court of Pakistan and I do not see on what logical ground it should be held that though he would have had a right to practise as an Advocate in the Supreme Court even if President's Order No. 21 of 1962 had not been issued he would not have been in a position to practise as an Advocate in the High Court in which he was enrolled as an Advocate when clause (3) of Article 166 of the Islamic Republic of Pakistan ceased to have any force. The Laws (Continuance in Force) Order, 1958, which kept alive clause (3) of Article 166 of the Islamic Republic of Pakistan having been repealed on the 8th of June 1962, to bar to Mr. Akhlaque Husain's practising as an Advocate in the High Court of which lie had been a permanent Judge was removed on the 8th of June 1962, and he could practise as an Advocate from that date and President's Order No. 21 of 1962 cannot stand in his way.
• 7. The effect of the undertaking given by Mr. Akhlaque Husain at the time of his becoming a permanent Judge of the High Court of Judicature at Lahore way now be dealt with. The undertaking would not be applicable because it related to practising as an Advocate before the High Court of Judicature at Lahore‑a Court which ceased to exist on the 14th of October 1955, when the Establishment of West Pakistan Act came into force. No doubt the undertaking given by Mr. Akhlaque Husain was to the effect that he shall not practise as an Advocate before any High Court to which he may be transferred from the High Court of Judicature at Lahore but as the undertaking cannot create a disability which was not possible at the time of the giving of the undertaking, I have no hesitation in holding that the undertaking could be invoked against Mr. Akhlaque Husain only if be wanted to practise as an Advocate before the High Court of Judicature at Lahore or before a High Court to which he could be, and actually was, transferred under the law in force at the time he gave the undertaking in 1954 and I find no difficulty in holding that Mr. Akhlaque Husain's becoming a Judge of the High Court of West Pakistan did not amount to his transfer to another High Court for the purposes of the undertaking given by him.
• 8. In view of what I have said above, I would hold that Mr. Akhlaque Husain can appear as an Advocate before the High Court of West Pakistan. It is clear that if a formal order to the effect that Mr. Akhlaque Husain may appear as an Advocate before this Court were necessary, it would not have been refused because the fact that the Supreme Court had allowed him to appear as an Advocate in that Court would have made the refusal by this Court to pass the formal order almost impossible.

Headnotes / Summary

Judgment & Decree