1992 PLP 90 (SCMR)

Representation

• Date of hearing: 14th October, 1991.
• YUSUF ALI KHAN Advocate Supreme Court‑‑In the matter of
• (In the matter of show‑cause notice against Mr. Yusuf Ali Khan, ' Advocate Supreme Court).
• ‑‑‑‑Art.191‑‑‑Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss.23, 22, 28, 41, 42, 43 & 46‑‑‑Supreme Court Rules 1980, O.IV, Rr.2 & 30‑‑‑Words `to make the rules regulating the practice and procedure' used in Art.191, Constitution of Pakistan‑‑‑Import‑‑‑Order IV, Rr.2 & 30, Supreme Court Rules 1980 having been competently framed by Supreme Court were not ultra vires of the Legal Practitioners and Bar Councils Act, 1975‑‑‑Power of Supreme Court to make rules regulating the practice and procedure of the Court‑‑‑Preparation and maintenance of roll of Advocates of the Supreme Court by Pakistan Bar Councils under S.23 of the Act‑‑‑Subject to the provisions of the Act and the rules made thereunder, a person shall be qualified to be admitted as an Advocate of the Supreme Court if he fulfils such conditions as may be laid down in this behalf from time to time by the Rules of Supreme Court‑‑‑Tribunal and Disciplinary Committee under the Act had exclusive jurisdiction to debar an Advocate from practising before all Courts and Tribunals whereas under O.IV, Rr.2 &‑ 30, of the Supreme Court Rules, 1980 Supreme Court could only debar an Advocate from practising in Supreme Court.
• Subject to the Constitution and law, the Supreme Court has been empowered to make rules regulating the practice and procedure of the Court. Section .23 of the Legal Practitioners and Bar Councils Act, 1973 empowers the Pakistan Bar Council to prepare and maintain a roll of advocates of the Supreme Court containing the particulars mentioned in clauses (a) and (b) of it. However, proviso to the above section makes it clear that no person shall call himself or hold out as an Advocate of the Supreme Court until he has signed the roll of advocates kept under the Rules of the Supreme Court and the right of a person to appear, act and plead before that Court, shall be subject to the said Rules. Section 28 of the Act re‑inforces the above proviso to section 23 by inter alia providing that subject to the provisions of the Act and Rules made thereunder, a person shall be qualified to be admitted. as an Advocate of the Supreme Court if he fulfils such conditions as may be laid down in this behalf from time to time by the Rules of the Supreme Court.
• If one was to 7read the proviso to section 23 and section 28 of the Act with the other provisions of the Act, it becomes clear that the Tribunal and the Disciplinary Committee under the Act have exclusive jurisdiction to‑debar an Advocate from practising before all Courts and Tribunals, whereas under Rules 2 and 30 of Order IV of the Rules, the Supreme Court can only debar an Advocate from practising in the Supreme Court. In this behalf, reference may be made to the provisions of sections 22, 41, 42, 43 and 46 of the Act. There seems to be no conflict between the Rules and the provisions of the Act, as the latter itself has kept intact the power of the Supreme Court in terms of above proviso to section 23 and the provisions of section 28 to regulate the right of a person to appear, act and plead or to be qualified to be admitted as an Advocate, which includes the right to debar an Advocate from practising in the Supreme Court or to remove his name from the roll.
• Karam Elahi Bhatti, Advocate‑on‑Record, Rawalpindi v. The Pakistan Bar Council, Rawalpindi and another P L D 1991 Journal 34 and Province of East Pakistan and another v. Nur Ahmad and another P L D 1964 SC 451 ref.
• ----O. IV, Rr. 2 & 30‑‑‑If an Advocate commits an act which is amenable under Rr.2 & 30 of O.IV of the Rules on a date when the Rules were in force and operative, the action is to be taken under the Rules and not on the basis of Rules which might have been in force at the time when the Advocate concerned signed the roll of the Supreme Court.
• (iii) That even if it is to be held that the Rules were competently framed and are intra vires the provisions of the Act, the same could not have been applied retrospectively to the petitioner as' the same were framed on 20‑11‑1980, whereas the petitioner signed the Roll of Advocates of this Court on 12‑6‑1975; and
• "23.‑‑Preparation etc of roll of advocates of the Supreme Court:---The Pakistan Bar Council shall prepare arid maintain a roll of advocates of the Supreme Court in which shall be entered the names of‑‑
• (a) all persons who were, as advocates, senior advocates or advocates on record, entitled to practise in the Supreme Court immediately before the commencement of the Bar Councils and Legal Practitioners (Amendment) Act, 1987, and
• (b) all persons who are admitted as advocates of the Supreme Court under the provisions of this Act:
• provided that no person shall call himself or hold himself out as an Advocate of the Supreme Court until he has signed the roll of advocates kept under the Rules of the Supreme Court, and the right of a person to appear, act and plead before that Court shall be subject to the said Rules."
• "28. Persons qualified for admission as advocates of the Sul2reme Court.‑‑ Subject to the provisions of this Act and the rules made thereunder, a person shall be qualified to be admitted as an advocate of the Supreme Court if be fulfils such conditions as may be laid down in this behalf from time to time by the Rules of the Supreme Court and has paid to the Pakistan Bar Council such enrolment fee as may be prescribed by that Council."
• 5. A perusal of the above Article 191 of the Constitution indicates that subject to the Constitution and law, the Supreme Court has been empowered to make rules regulating the practice and procedure of the Court. It may further be noticed that 'above quoted section 23 of the Act, empowers the Pakistan Bar Council to prepare and maintain a roll of advocates of the Supreme Court containing the particulars mentioned in clauses (a) and (b) of it. However, proviso to the above section makes it clear that no person shall call himself or hold out as an Advocate of the Supreme Court until he has signed the roll of advocates kept under the Rules of the Supreme Court and the right of a person to appear, act and plead before that Court, shall be subject to the said Rules. It may also be noticed that above section 28 of the Act re‑inforces the above proviso to section 23 by inter alia providing that subject to the provisions of the Act and Rules made thereunder, a person shall be qualified to be admitted as .an Advocate of the Supreme Court if he fulfils such conditions as may be laid down in this behalf from time to time by the Rules of the Supreme Court.
• 6. If we were to read the above Article 191 of the Constitution with the above provisions of the Act, it becomes clear that the Rules have been competently framed and they are not ultra vires the provisions of the Act, but in consonance with the same: However, the petitioner has referred to the case of Karam Elahi Bhatti, Advocate‑on‑Record, Rawalpindi. v. The Pakistan Bar Council, Rawalpindi and another (P L D 1991 Journal 34), in which the majority view of the Bar Council's Disciplinary Committee was that the Bar Council had exclusive jurisdiction to enrol and take disciplinary action against the Advocates of the Supreme Court including Senior Advocates and Advocates‑on‑Record. The Chairman of the above Disciplinary Committee (The Honourable Acting Chief Justice ‑ Mr.. Justice Dr. Nasim Hasan Shah) did not agree with the above conclusion. If we were to read the above proviso to section 23 and section 28 of the Act with the other provisions of the Act, it becomes clear that the Tribunal and the Disciplinary Committee under the Act have exclusive jurisdiction to debar an Advocate from practising before all Courts and Tribunals, whereas under Rules 2 and 30 of Order IV of the Rules, the Supreme Court can only debar an Advocate from practising in the Supreme Court. In this behalf, reference may be, made to the provisions of sections 22, 41 ,42, 43 and 46 of the Act. There seems to be no conflict between the Rules and the provisions of the Act, as the latter itself has kept intact the power of the Supreme Court in terms of above proviso to section 23 and the provisions of section 28 to regulate the right of a person to appear, act and plead or to be qualified to be admitted as an Advocate, which includes the right to debar an Advocate from practising in the Supreme Court or to remove his name from the roll.
• 8. Adverting to the petitioner's above third submission that even if it is to be held that the Rules were competently framed and are intra vires the provisions of the Act, the same could not have been applied retrospectively to the petitioner as the same were framed on 20‑11‑1980, whereas the petitioner signed the Roll of Advocates of this Court on 12‑6‑1975, it may be observed that in support of his above contention, he has referred to the case of Adrian Afzal v. Capt. Sher Afzal (P L D 1969 SC 187), in which inter alia it has been held that procedural matters can be given retrospective effect provided if they do not touch upon a right in existence at the time of passing of legislation. There cannot be any dispute about the above legal proposition. However, the question which requires consideration is, as to whether the above principle of law can be pressed into service in the present case. If an Advocate commits an act which is amenable under Rules 2 and 30 of Order IV of the Rules on a date when the same are in force and operative, the action is to be taken under the above Rules and not on the basis of the Rules which might have been in force at the time when the Advocate concerned signed the Roll of the Supreme Court for practising. The petitioner has relied upon the case of Muhammad Ibrahim Munshey and others v. Province of West Pakistan through Chief Secretary and others (P L D 1968 SC 1). The above case in fact does not support his case. On the contrary, in the same it has been inter alia held that a case is to be decided on the basis of a law obtaining at the time of commencement of the proceedings. In the present case admittedly the Rules were in force at the time when the petitioner addressed his letter, dated 20‑12‑1990 to Mr. Justice Saad Saood Jan, show‑cause notice was issued to him and the order which is sought to be recalled, was passed. It is, therefore, evident that the Rules have not been made applicable retrospectively. If we were to apply some Rules which might have been framed after the issuance of the show‑cause notice, the petitioner might have a case to argue, but this is not the case. It may also be pertinent to mention that even 1956 Rules have parallel provisions to above Rules 2 and 30 of Order IV of the Rules. Additionally, the above proviso to section 23 and section 28 of the Act were very much in the field at the time when the petitioner signed the Roll of this Court on 12‑6‑1975.

Headnotes / Summary

Judgment & Decree