Muhammad Afaq Vs President Tahir Nasrullah Warraich etc

PLJ 2022 Lahore (Note) 96 Present: ABID AZIZ SHEIKH, J.

MUHAMMAD AAFAQ--Petitioner versus

PRESIDENT LAHORE HIGH COURT BAR ASSOCIATION

etc.--Respondents W.P. No. 13215 of 2021, decided on 21.3.2022.

Constitution of Pakistan,1 973-- ----Art. 199--Elections of bar associations--Autonomous bodies--Constitutional jurisdiction-- Principles laid down by Apex Court--Office bearers of bar councils are not public functionaries--Maintainability--Hon’ble apex Court held that Pakistan Bar Council is an autonomous body generating its own fund without any Government control, thus, not amenable to Constitutional jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 (Constitution)-- This Court in a reported judgment dated 26.1.2022 passed in writ petition No. 63 835/2021 while relying upon judgments of Hon’ble Supreme Court also held that against Punjab Bar Council, writ petition is not maintainable-- Once constitutional petition is not maintainable against Bar Councils being autonomous private bodies, then their office bearers will also be deemed as private individuals and not public functionaries; for purpose of maintainability of constitutional petition--Petition disposed of. [Para 3, 5 & 6] A, B & C 2021 SCMR 425 and 2020 SCMR 631 ref.

Petitioner in person.

Barrister Tayeeb Jan, Assistant Advocate General for State.

Date of hearing: 21.3.2022.

ORDER

This constitutional Petition is directed against various office bearers of Lahore High Court Bar Association Lahore, Punjab Bar Council, Supreme Court Bar Association and Pakistan Bar Council, inter-alia to conduct the election of Bar Councils in accordance with the provision of The Legal Practitioners & Bar Councils Act, 1973 (Act) and Memorandum of Association,

1981 (MOA).

2.The petitioner at the very outset confronted that how this writ petition is maintainable against the Bar Councils or office bearers of Bar Councils and Associations. He in response submits that in view of law settled in Mrs. Nasira Iqbal vs. Appeal Committee etc (PLD 2010 Lahore 175), this constitutional petition is maintainable against the Bar Councils as well as office

bearers of Bar Councils and Associations. On merits, he submits, that respondents are bound to hold elections in accordance with the provision of the Act and MOA.

3.Heard. Before touching merits of the case, I would like to decide threshold question of maintainability at the first instance. Similar question of maintainability of writ petition against Pakistan Bar Council came up before the Hon’ble Supreme Court of Pakistan in the case of “Syed Iqbal Hussain Shah Gillani versus Pakistan Bar Council through Secretary, Supreme Court Bar Building, Islamabad and others” (2021 SCMR 425), where after detailed discussion the Hon’ble apex Court held that the Pakistan Bar Council is an autonomous body generating its own fund without any Government control, thus, not amenable to the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). The relevant extracts from the aforesaid judgment are reproduced as under:- “7. Pakistan Bar Council is a body established under an Act of Parliament namely “The Legal Practitioners and Bar Councils Act, 1973” (“Act of 1973”), whereas, the SCBAP is an association of Supreme Court Lawyers, working under the control of the Pakistan Bar Council. The Act of 1973 provides for the establishment of the Bar Council as well as matters relating to elections, disciplinary proceedings, constitution formation and powers of the committees and all other relevant matters. A bare reading of the 1973 Act reveals that other than the Attorney General for Pakistan being the ex-officio Chairman Pakistan Bar Council, nothing in the Act suggests any administrative control being exercised by the Federal or Provincial Government over the affairs of the PBC. The PBC is an entirely autonomous body which has independent elections and generates its own funding without any Government control. Thus, the State does not have any financial or other interests in the affairs of the PBC, nor does it perform any function in connection with the affairs of the Federation, a Province or a local authority.

14.In addition, it must be noted that it is settled law that fundamental rights are by and large (very exceptional circumstances apart) are enforceable against the State and not against private individuals. The Petitioner however seeks relief against the Executive Committee Pakistan Bar Council, which is an autonomous private body and not a State institution. Therefore, an argument regarding the enforceability of fundamental rights against such a body is flawed at the outset. Accordingly, we hold that a constitutional petition against Pakistan Bar Council or its Executive Committee is not maintainable under Article 199(1)(c) of the Constitution. “

4.The same principle was also laid down by Hon’ble Supreme Court of Pakistan in the case of “Mirza Muhammad Nazakat Baig versus Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and another” (2020 SCMR 631), where it is held as under:

“A bare reading of the provisions of the Legal Practitioners and Bar Councils Act shows that the Act provides for establishment of Bar Councils in the Provinces as well as the Islamabad Capital Territory. It deals with all matters relating to elections of office bearers, disciplinary and other professional matters, constitution of committees, their powers and other related and incidental matters. However, it is clear that other than the Attorney General for Pakistan being the ex-officio, Chairman Pakistan Bar Council and Advocates Generals of the Provinces and Islamabad Capital Territory being ex-officio, Chairman of the Provincial Bar Councils and Islamabad Capital Territory neither the Provincial nor the Federal Government exercise any administrative control over the affairs of the Pakistan Bar Council or the Provincial Bar Councils. Pakistan Bar Council is a statutory body which is autonomous and generates its own funds independently. The Government does not have any control over it. Likewise, the Islamabad Bar Council acts as a regulator for affairs of the Advocates in Islamabad Capital Territory, admits Advocates to practice before the said High Court and maintains rolls of such Advocates. The functions of the Council also interalia include initiating proceedings for misconduct against Advocates on its rolls and award punishment in such cases. That being so, neither the Respondent nor any of its constituents or committees can be regarded as persons performing functions in connection with the affairs of the Federation, Provinces or Local Authority within the contemplation of the Article 199 of the Constitution of Islamic Republic of Pakistan. As such we are in no manner of doubt that Respondent No. 2 is not amenable to the jurisdiction of the High Court in terms of Article 199 of the Constitution”.

5.This Court in a reported judgment dated 26.1.2022 passed in Writ Petition No. 63835/2021 while relying upon the aforesaid judgments of Hon’ble Supreme Court also held that against the Punjab Bar Council, writ petition is not maintainable. The relevant part of the order is reproduced hereunder:

7.The Pakistan Bar Council and Provincial Bar Councils including Punjab Bar Council are established under the provisions of the Legal Practitioners and Bar Councils Act, 1973 (Act). Under Section 5 of the Act, the Provincial Bar Council shall consist of Advocate-General of the Province and such number of members as may be elected by the Advocates on Provincial roll. The qualification and disqualification for membership of Provincial Bar Council and functions of the Provincial Bar Councils are prescribed in Sections 5 to 9 of the Act and Standing Committees of Provincial Bar Councils are constituted under Section 10 of the Act. Similarly, the composition of Pakistan Bar Council, qualification of its members and functions are prescribed in Sections 11 to 15 of the Act. The remaining provisions including Section 17 of the Act (which is regarding funding of the Bar Councils), are general provisions relating to both the Pakistan and

Provincial Bar Councils. Under the provision of the Act like Pakistan Bar Council, the Punjab Bar Council is also a statutory body but same is autonomous and generates its own funds independently.

8.Other than the Advocate General of Province being the ex-officio member and Chairman of the Punjab Bar Council, nothing in the Act suggests that any administrative or financial control is being exercised by the Federal or Provincial governments over the affairs of the Punjab Bar Council. Thus Punjab Bar Council is not performing any functions in connection with affairs of the Federation or Province or a local authority. Therefore, for the purpose of maintainability of this Constitutional petition, the status of the Punjab Bar Council will be same as that of the status of the Pakistan Bar Council as settled by the Hon’ble Supreme Court of Pakistan in the cases of Syed Iqbal Hussain Shah Gillani and Mirza Muhammad Nizakat Baig (supra).

9.The law settled in the afore-noted judgments by Hon’ble Supreme Court is squarely applicable to the Punjab Bar Council, which is also an autonomous private body without any Government control, though constituted under the Act, hence this Constitutional petition against Punjab Bar Council is not maintainable. The same view was also expressed by this Court in the recent judgment dated 05.01.2022, passed in Writ Petition No. 228 of 2022, titled “Sardar Ourban Ali Dogar v/s Pakistan Bar Council and others

6.The law settled in above judgments is on all four to the facts and circumstances of this case. Once the constitutional petition is not maintainable against Bar Councils being autonomous private bodies, then their office bearers will also be deemed as private individuals and not public functionaries; for purpose of maintainability of the constitutional petition. The case law relied upon by the petitioner is distinguishable and cannot be given precedent over the latest law settled by Hon’ble Supreme Court.

7.In view of above discussion, the instant writ petition is not maintainable which is accordingly dismissed.

(Y.A.) Petition disposed of.