P L D 1961 Supreme Court 431 (PLP)

Laws Cited

Representation

• ----Advocate appointed permanent Judge of High Court‑Bar against legal practise after retirement‑Constitution of Pakistan (1956), Art. 166 (3) read with High Court of West Pakistan (Establishment) Order (XIX of 1955), Art. 6‑Permanent Judge of High Court‑Not entitled to practise, after retirement or removal, in such High Court or any Court or authority within its jurisdiction Bar of Art. 166 (3) in essence same as undertaking obtained from permanent Judges before promulgation of Constitution‑Laws (Continuance in Force) Order (1 of 1958), Art. 6‑High Court Judges to continue in office "on same terms and conditions" as before Constitution of Pakistan (1956), Third Sched., para. 7‑Advocates' right to practise‑Provision of general nature, subject to all "special" legal provisions on same subject, e.g. Art. 166 (3).
• The appellant's name was borne on the Roll of Advocates of the West Pakistan High Court. He was a permanent Judge of that Court until 1959, when upon a reference and report made under Article 169 of the late Constitution, the President removed him from that office.
• The legal provision in paragraph 7 of Third Schedule of the Constitution of Pakistan (1956),' wherein right to practise in High Courts was assured to Advocates on rolls of a High Court is of a general nature available to all Advocates. Its operation is subject to all special legal provisions on the same subject, and such a provision of a 'very special 'nature, which directly hits the, case of the appellant, is that contained in the Constitution in Article 166 (3).
• Ahsanul Haque' Advocate Supreme : Court instructed by Amjad Hussain Attorney for Appellant.
• Mushtaq Hussain Additional Advocate-General West Pakistan. (Hafizur Rehman Advocate Supreme Court with him) instructed by‑Ijaz Ali Attorney for Respondents.
• The appellant's name is borne on the Roll of Advocates of the West Pakistan High Court. He was a permanent Judge of that Court until 1959, when upon a reference and a report made under Article 169 of the late Constitution, the President removed him from that office.
• The appeal of Syed Akhlaque Hussain is against an order made by a Division Bench of the High Court of West Pakistan sitting at Karachi, directing that he would not be permitted to appear in that Court as an Advocate. The matter was brought up with. reference to three criminal cases in which Syed Akhlaque Husain had been engaged as a counsel. The learned Judges of the Division Bench held that it was made absolutely clear by subsec tion (3) of Article 166 that "a permanent Judge of the High Court was holding office on condition that he shall not plead or act before that Court or any Court subordinate to it". They then referred to Article 6 of the Laws (Continuance in Force) Order, 1958 by which it was laid down that every person who immediately before the 7th October 1958 was in office as inter alia, a Judge of a High Court "shall continue in the said office on the same terms and conditions and shall enjoy the same privileges, if any". Having held that the purport of Article 166 (3) was to impose a condition upon the holding of office as a permanent High Court Judge, the learned Judges found no difficulty in holding also that this condi tion continued to apply to Syed Akhlaque Hussain. They thought that it made no difference that he had ceased to be a High Court Judge as a result not of retirement, but of removal from office. Syed Akhlaque Hussain had attempted to rely on the case of Hamid Ghulam Sadiq (P L D 1960 S C (Pak.) 351), but the Judges thought, and in our opinion rightly, that that was a case in which it was impossible to find the authority competent to enforce a condition of the employment of an officer, namely, that he should not be prosecuted before a Special Judge under the Criminal Amendment Act of 1958 except with the sanction of the "appropriate Government", and that no such question arose in the 'case of Syed Akhlaque Hussain. They thought that the prohibition under Article 166 applied as soon as a permanent High Court Judge went out of office, however that incident may occur.
• In our opinion, the view of the learned Judges of the Division Bench that Article 166 (3) represents a condition applicable to the holding of office as a permanent High Court Judge is correct, This subsection of Article 166 is clearly intended to replace the earlier system by which High Court Judges, upon becoming permanent, voluntarily placed upon themselves as a condition of their appointment, the restriction that after retirement they would not practise in that High Court or any Court subordinate thereto. The form of undertaking is clearly expressed to be a condition of appointment. What the late Constitution did inter alia was to convert this condition into a statutory prohibition. There are a number of other such prohibitions in the Constitution to which the appellant drew our attention, for instance, that a person who has once been a Judge cannot be appointed as Advocate‑General or Attorney‑General or Governor. 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, leave, 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 prohibi tion. 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. The further argument that a Judge's terms and conditions of office cannot be altered to his disadvantage during his term of office, is of no avail against a clear prohibition included in the Constitution itself.
• Syed Akhlaque Hussain attempted to rely upon the absolute right of Advocates to appear in High Courts, and referred to paragraph 7 of the Third Schedule to the late Constitution, where, this right was assure, the following words; namely :
• "An Advocate on the rolls of a High Court shall be entitled to act and plead in both the High Courts, and in all other Courts, subordinate thereto . .. . . . "
• That is, a legal; provision of a general nature available to all, Advocates. Its operation is subject to all special legal provisions on the same subject, and such a provision of a very special nature which directly hits the case of the appellant, is that contained in the Constitution in Article 166 (3).

Headnotes / Summary

Judgment & Decree