Shabir Vs The State & others

I

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

ft.M er Ano tion) No.34- P/202s

For Petitioner Mr. Sajjad Utmankhel. Advocate along (Shabtu) with the petitioner.

For Respondent Mr. Nauman-ul-Haq Kakakhel, AAG. (State) For Respondents No. M/s. Muhammad Yasir Khattak artd 2tos Anf Rasool Advocates.

(Ali Aslam- etc.)

M/s. Amin-ur-Rehman Yousafzai, Advocate/President, Ashfaq Ahmad Daudzai, Advocate/General Secretary, P.H.C Bar Association, Syed Mubashir .Shah, Advocate / Member I(P Bar Council, Fida GuI, Advocate / former President PHC Bar Association as well as Syed Sajid Shah, Secretary KP Bar Council (on court notice).

Research Assistance: Mazhar AIi Khan, Research & Reference Officer Date of hearing: 20'h June, 2025

JUDGMENT

S. M. ArnouE SHAH, ACI.- The rule of law is the bedrock of any constitutional democracy. It requires that all individuals, irrespective of their position or influence, are equally subject to and protected by the law. Fundamental to this principle are the guarantees of equality before the law, access to justice, and the right to a fair trial before an independent and impartial tribunal.

These are not abstract ideals but binding constitutional mandates enslirined in Articles 4, 10-A, and 25 of the Constitution of the Islamic Republic of Pakistan, 1973

t

("Constitution"). Among them, the right to a fair trial ensures not only procedural fairness but also safeguards the substantive rights of individuals, guaranteeing that no one is denied justice due to fear, coercion, or undue influence. In this constitutional framework, Bar Associations hold a pivotal role. They are not merely professional bodies but essential guardians of judicial independence and ethical legal representation. Their conduct directly impacts the fairness and integrity of the justice system. It is within this constitutional and institutional context that the present petition is to be examined.

2.The petitioner Shabir Khan, who is also the complainant in the case, seeks transfer of pre-arrest bail proceedings filed by the accused respondents AIi Aslam, Shehreyar, Bilal, and Tufail nominated in FIR No. 410 dated 11.04.2025 under Sections 337L(2), 337F(v), 336, and 34 PPC, registered at Police Station Par Hoti, District Mardan. He requests that the case be transferred from the court of the learned Additional Sessions Judge/MCTC, Mardan, to any other competent court, preferably at Abbottabad, Mansehra, or Haripur, citing apprehension of undue influence due to the accused respondents' position

as influential members of the District Bar Association, Mardan ("DBA").

3.At the previous hearing, it was brought to the Court's attention that due to the influence allegedly exercised by the accused respondents, a notice dated 10.05.2025, now part of the record, was issued by DBA Mardan, directing all advocates to abstain from representing the petitioner complainant in the present case. Such a directive strikes at the core of legal ethics and compromises the independence of the Bar. More gravely, it amounts to an obstruction of justice by effectively depriving the petitioner of his fundamental right to legal representation. This development raises profound concerns regarding the fairness and integrity of the ongoing judicial process and constitutes a direct affront to the constitutional guarantee of a fair trial under Article 10A of the Constitution. The provision enshrines not merely procedural safeguards but ensures that every individual, whether complainant or accused, is entitled to be heard before an impartial, competent and independent forum and to secure legal counsel of one's own choosing, free from fear, coercion or undue interference.

4.Given the foregoing concerns and the gavity of the situation, particularly where fundamental rights of an individual were at stake, this Court found it necessary to summon the personal appearance of the President and General Secretary of the DBA, Mardan, as well as representatives of the Khyber Pakhtunkhwa Bar Council from District Mardan, including the Vice Chairman and Chairman Executive Committee. The objective was to ascertain the factual matrix and institutional position, especially in the context of Artide 10-A of the Constitution. In compliance, M/s. Amin-ur-Rehman Yousafzai and Ashfaq Ahmad Daudzai, Advocates, President and General Secretary of the Peshawar High Court Bar Association ('PHCBA") respectively; Syed Mubashir Shah, Advocate, Member of the Khyber Pakhtunkhwa Bar Council; Fida Gul, Advocate, Former fresident of the PHCBA; and Syed Sajid Shah, Secretary of the Khyber Pakhtunkhwa Bar Council, appeared before the Court.

5.At the very outset of the proceedings, it was brought to the notice of the Court that the alleged notice dated 10.05.2025 has since been withdrawn. In this regard, a certificate tltled "To Whom It May Concern" has been produced and placed on the record. Indeed, this role

of the Bar Association qua withdrawal of the impugned notice is commendable in the peculiar facts and circumstances of the case.

6.Be that as it may, this Court recognizes that the incorporation of the right to fair trial and due process as an independent and enforceable fundamental right in terms of Article 10-A of the Constitution underscores its paramount constitutional significance. This provision elevates the principles of fairness, impartiality, and procedural justice to the status of constitutionally protected guarantees, thereby placing a positive and binding obligation upon the State and the judiciary to ensure their meaningful and effective enforcement. Like all other fundamental rights enshrined in the Constitution, Article 10-A must be interpreted in a liberal, purposive, and progressive manner, aligned with the evolving standards of justice and the rule of law. Courts are, therefore, duty-bound to zealously protect and uphold this right, ensuring that no person is denied access to justice or subjected to arbitrariness in legal proceedings. Reference may be made to Muhammad Yousaf v. Wovince of Sindh o nd others (2024 SCMR 1689) & Chai n NAB throaa P-G-. Accountab ilitr,t v.

Nasar UlIah and 5 othe r.s (Pt_D 2022 SC 497).

7.It is equally important to note that the right to fair trial, as guarillteed under Article l0-A, is not confined to the formal conduct of judicial proceedings alone. Rather, it encompasses broader and substantive safeguards, including the right to be heard before a competent, independent, and impartial tribunal, and the unimpeded right of a party, whether complainant or accused, to engage legal counsel of their own choice. This right must be exercised free from coercion, intimidation, obstruction, or undue influence. This constitutional protection is reinforced by international human rights law. Article 10 of the Universal Declaration of Human Ilights of 1948 (UDHR) provides that "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal." Likewise, Article 14(1) and (3) of the International Covenant on Civi] and Political Rights of 1966 (ICCPR), to which Pakistan is a State pafiy, affirm the right to a fair and public hearing, the right to Iegal assistance of one's own choosing, and the right to equality before the cou.rts.

8.Any act whether by public authority, private individuals, or professional bodies that restricts or discourages access to legal representation, undermines the independence of the legal profession, or compromises

the neutrality of the adjudicating forum constitutes a serious violation of these constitutional and international guilantees. Such interference not only prejudices the rights of an individual litigant but also strikes at the core of constitutional justice, eroding public trust in the legal system and rendering the entire adjudicatory process vulnerable to miscarriage of justice. It is, therefore, incumbent upon the Bar Associations and the courts to vigilantly guard against such violations and to enforce Article 10-A with the full force of constitutional and international mandate, ensuring that iustice is not only done but is manifestly and unambiguously seen to be done fairly, impartially and consistently regardless of the circumstances within the mandate of the Constitution.

9.It must be emphatically stated that Bar associations are not mere professional collectives; they are vital constitutional institutions integral to the administration of justice and the safeguarding of the rule of law. They serve as custodians of legal ethics, defenders of judicial independence, and facilitators of equal access to justice. Throughout history, both in Pakistan and abroad, bar associations have stepped into the breach when constitutionalism was under threat or when individual rights were suppressed' In Pakistan's own

recent past, the 2007 Lawyers' Movement stands as a mommental testament to this legacy. When General Pervez Musharraf imposed a state of emergenry and udawfully sacked the Chief Justice of Pakisran, it was the legal fraternity, spearheaded by the Pakistan Bar Council, provincial bar councils, and bar associations nationwide, that galvanized mass democratic resistance. Thousands of lawyers marched, faced arrests, and endured police brutality in defense of judicial independence and constitutional supremacy. The sacrifices made by members of the legal community reflect the nobility and indispensability of the Bar in preserving the rule of law.

Their commitment culminated in the reinstatement of deposed judges and reaffirmed the sanctity of the Constitution, marked as a defining chapter in Pakistan's democratic evolution.

10.In addition to, Bar Associations in Pakistan have also made vital contributions through legal advocacy in landmark constitutional cases. Their involvement in shaping the contours of constitutional jurisprudence is evident from their lead role in seminal decisions such as Sindh Hioh Coart Bar Association v. ederation of Pakistan (PLD 2OO9 SC 879), where the Supreme Court invalidated the Provisional Constitution Order of 2007

and reaffirmed judicial independence, and Distri ct Bar Association. Rawalnindi v. Federation of pakistan (pLD 2015 SC 401), where foundational questions regarding constitutional amendments and the basic structure were adjudicated. These interventions highlight that in moments of constitutional crisis, it is often the Bar Associations that first steps forward to defend the rule of law and safeguard fundamental rights, thereby reaffirming its institutional significance in Pakistan's democratic architecture.

il. Viewed in this spectrum, any act by an individual or a bar association that restricts or discourages lawyers from representing litigants, especially vulnerable complainants or accused, is not only legally indefensible but morally dissonant with the Bar's historic mission. The issuance of a directive, as in the present case, instructing lawyers not to appear on behalf of the petitioner complainant, runs counter to the foundational principles of legal representation, access to justice, and independence of the legal profession. Internationally, bar associations such as the American Bar Association, the International Bar Association, and the Law Society of England and Wales have consistently advocated for the protection of these core rights. They

have opposed repressive regimes, supported persecuted lawyers, and denounced efforts to cutail fair representation.

12.In this regard, the International Bar Association's Standards for the Independence of the Legal Profession (1990) provide authoritative guidance. Most crucially, Principle 18 outlines the core responsibilities of lawyers' associations, including upholding justice without fear or favor, maintaining professional integrity and ethics, defending the independence of the judiciary, and ensuring access to justice and legal representation for all, particularly the vulnerable. It also mandates that bar associations promote fair hearings before competent, independent tribunals and conuibute to public education and legal reform. These principles collectively affirm that a bar's duty transcends organizational interests. It is fundamentally a constitutional obligation. Similarly, in a neighbouring jurisdiction, the Supreme Court of India in the case of R. Mu v. The Re gtstrar al

of the Hish Court of Iudicature at Madras (ArR 2019 SC 849), while elaborating on the role of Bar Associations, observed as follows:

16.It is basically the lawyers who bring the cause to the Court are supposed to protect the rights of individuals of equality and freedom as constitutionally envisaged and to ensure the country is governed by the Rule of law. Considering the significance of the Bar in

maintaining the RuIe of law, right to be treated equally and enforcement of various other fundamental rights, and to ensure that various institutions work wilhin their parameters, its independence becomes imperative and cannot be compromised. The lawyers are supposed to be fearless and independent in the protection of rights of litigants. What lawyers are supposed to protect, is the legal system and procedure of law of deciding the cases.

13.In light of the foregoing, any directive by a bar association that seeks to restrain or inhibit legal representation, particularly for vulnerable complainants or accused persons, constitutes a grave breach of the ethical and constitutional duties incumbent upon the legal profession. Such conduct undermines the principle of equal access to justice, compromises the independence of the legal profession, and violates internationally recognized standards. The right of every individual to be represented by counsel of their own choosing, without intimidation or obstruction, ls a foundational component of the right to fair trial. It is therefore imperative that bar associations, especially at the district level, remain vigilant against any institutional or individual overreach that erodes these guarantees. Any deviation from this obligation not only affects the rights of the litigants but also tarnishes the credibility of the legal system and diminishes the Bar's constitutional stature as an enabler of justice and the rule of law.

L4. Reverting back to the main issue, since the impugrred notice has been withdrawn, as noted above, this Court is of the view that the core grievance stands amicably resolved and no further proceedings are warranted at this stage. Accordingly, this petition is disposed of in the above terrns.

15.The Additional Registrar (Judicial) is directed to transmit / circulate copies of this Judgment to the Chairman, Vice Chairman, Chairman Executive Committee of the Khyber Pakhtunkhwa Bar Council, Presidents of the Peshawar High Court Bar Associations both at Principal seat and its Benches, and Presidents of the District & Tehsil Bar Associations of the hovince for information' Announced 20.06.2025 ACTING CHIEF ruSTICE

6.8) lusttce S. M. Attlque Shah, HACI