1990 PLP 97 (CLC)

(iii) That since there is no registration of the Advocates district‑wise, no district‑vise Divisional rolls can be prepared in terms of Section 5 of the Act read with Rule 4. (iv) That the Karachi Bar has been consistently fighting against the decentralization of the Courts and that the preparation of the divisional rolls of Advocates district-wise, would to fact amount to decentralization‑

6. We are inclined to hold that in view of the statement made by Mr. Abdul Hafeez Lakho, learned Advocate‑General, who is also an Ex Officio Chairman of the Council, that the elections programme will be published by the end of this A week and that the polling would be held on 2nd November 1989, the relief prayed for in clause (i) stands conceded and, therefore, it is not necessary to enter into the controversy whether factually there has been any negligence or default on the part of respondent No.l or 2.

7. This leads us to the question of preparation of Divisional Rolls of Advocates district‑wise. In this regard, it may be pertinent to refer to Section 5 of the Act and Rule 4 of the Rules, which read as follows:‑ "

5. Composition of Provincial Bar Councils.‑‑ (1) Each Provincil Bar Council shall consist of (a) the Advocate‑General of the Province, ex officio, and (b) such number of members as may be elected by the Advocates on the Provincial roll from amongst themselves. (2) The number of members to be elected to a Provincial Bar Council shall be determined as hereinafter provided, namely:‑ (a) If, on the first day of October of the year in which elections to the Bar Council are to be held, hereinafter called the said day, the number of advocates practising generally in a district and entered on the Divisional roll from that district is not less than fifty, one member shall be elected from such district: (b) if, on the said day, the number of advocates practising generally in a district and entered on the Divisional roll from that district exceeds fifty, t there shall, in addition to the member to be elected from the district under clause (a). be elected from the district one member for every three hundred advocates in excess of fifty; and (c) if, on the said day, the number of advocates practising generally in a district and entered on the Divisional roll from that district is less than fifty, such district shall be deemed to form part of the adjoining district or, if there are more than one adjoining district, of the adjoining district with the lowest number of advocates practising therein: Provided that, if the number of such advocates to a district, together with the number of such advocates to the adjoining district of which it is to her so deemed to form part, is less than fifty, such district or, as the case may be, both such districts shall, for the purpose of the election, be joined with one or more other adjoining districts so that the aggregate number of the advocates practising generally in such districts and entered on the divisional roll there from is not less than fifty: Provided further that for the first Provincial Bar Councils to be constituted under this Act the number of members to be elected to a Provincial Bar Council shall be determined on the basis of the number of advocates entered on the Divisional roll on a date to be notified in the official Gazette by the Federal Government. (2‑A) For the purpose of the election of the members of a Provincial Bar Council from a district or districts under subsection (2), the advocates entered on the Divisional roll of the Division of which such district or districts form part shall constitute the electoral college. (3) Notwithstanding anything contained to subsection (2) the Provincial Bar Council to be constituted under this Act for the Province of Baluchistan shall consist of not less than four members who shall be elected from the advocates entered on the provincial roll who practise generally in any place within the Province of Baluchistan. (4) At an election of the members of a Provincial Bar Council an advocate shall have as many votes as the number of members to be elected from the division concerned (5) A member may resign his office by writing under his hand addressed to the Chairman of .the Council. (6) .......... ........... " "4.‑‑(1) Each Provincial Bar Council shall publish Divisional rolls of Advocates district‑wise on the 1st day of October of the year in which the elections of a Bar Council are to be held, which will constitute as Voters Lists for the elections to the Provincial Bar Council. (2) : The Returning Officer of a Provincial Bar Council, after ascertaining the number of Advocates practicing generally in a district and entered on the Divisional Roll from that district on the 1st day of October, as published under sub‑rule (4) (1), shall notify‑‑ (a) the number of Members to be elected from each district under clauses (a) and (b) of subsection (2) of section 5; and (b) the names of the districts which shall for the purpose of election be joined with one or more adjoining districts under clause (c) of subsection (2) of section 5." For the purpose of the present controversy, it may be noticed that under clause (b) of subsection (1) of section 5 the number of members of the council is omitted as it will fluctuate in view of clauses (a), (b) and (c) of subsection 2 of above section 5 of the Act, as the same provides the basis on which the number of the members of the Council is to be determined. It, may be pointed out that above clause (a) provides that if, on the first day of October of the year in which elections to the Bar Council are to be held, the number of advocates practising generally in a district and entered on a Divisional roll for that district is not less than fifty, one member shall be elected from such district, whereas; above clause (b) Provides that if, on the relevant day, the number of advocates Practising generally in a district and entered on the Divisional roll from the district exceeds fifty, there shall, in addition to the member to be elected from the district under clause (a), be elected from the district one member for every three hundred advocates in excess of fifty. It may also be noticed that the above clans provides that if, on the relevant day a (c) , the number of advocates practising generally in a district and entered on the Divisional roll from the district is less than fifty, such district shall be deemed to form part of the adjoining district or, if there are more than one adjoining district, of the adjoining district with the lowest number B of the advocates practising therein. It may also be pertinent to point out that the first proviso to the above clause provides that, if the number of such advocates in a district, together with the number of such advocates in the adjoining district of which it is to be so deemed to form part, is less than fifty, such district or, a s the case may be, both such districts shall, for the purpose the election, be joined with one or more other adjoining districts so that the aggregate number of the advocates practising generally in such districts and entered on the Divisional roll therefrom is not less than fifty, whereas, the second proviso to the above clause provides that, "Provided further that for the first Provincial Bar Councils to be constituted under this Act the number of members to be elected to a Provincial Bar Council shall be determined on the basis of the number of advocates entered on the Divisional roll on a date to be notified in the official Gazette b the Federal Government". It may also be noticed that subsection (2‑A) of section of the Act lays down that, "For the purpose of the election of the members of a Provincial Bar Council from a district or districts under subsection 2 Advocates entered on the Divisional roll of the Division of which such district or districts form part shall constitute the electoral college". Whereas, Rule inter alia contempates publication of Divisional Rolls of Advocates district‑wise on the 1st day of October of the year in which elections of a Bar Council is to be held. 8 .Though in Karachi, there are four judicial districts functioning, but there is no separate enrolment of the advocates for each district and, therefore, prima facie it is not possible at this juncture to prepare Divisional rolls of the advocates of Karachi district‑wise in terms of above clauses (a) to (c) of subsection (2) of section 5 of the Act read with Rule 4 of the Rules. However it was submitted by Mr. Nizam Ahmad, learned counsel for the petitioner, that since the enrolment list of the advocates prepared by respondent No.l contains the addresses of the advocate, district‑wise list can be prepared. In our view, the district‑wise list cannot be prepared unilaterally by respondent No.l, on the basis of the addresses given in the enrolment list. Every advocate has the right to decide in which of the four districts, he would like his registration as an Advocate. In this view of the matter, the appropriate course of action will be to ask the Advocates who are on the roll of the Council from Karachi, to specify any one of the four districts for registration for the purpose of section 5(2) of the Act read with Rule 4.

9. We are inclined to hold that the factum that there is one Karachi Bar Association or that Karachi Bar is opposed to the decentralization does not in any way affect the requirement of preparing Divisional rolls of Advocates district- wise, as contemplated by aforesaid subsection (2) of section 5 of the Act read with Rule 4 of the Rules. However, since in the past elections have been held on the basis of treating Karachi as one district for want of Divisional Rolls district- wise, in our view, the present election may also be held on the same basis, but during the intervening period till the next due election; respondent No.1 shall prepare district‑wise Divisional Rolls in terms of the above provisions of the Act and the Rule.

10. The petition stands disposed of in the above terms. A.A./M‑927/K Order accordingly.