MAULA DAD KHAN Versus WEST PAKISTAN BAR COUNCIL

1. MUHAMMAD AFZAL CHEEMA, J.‑ These five Appeals Nos. 94 to 98 of 1969 are connected matters and are directed against a consolidated order of the Disciplinary Committee of the Pakistan Bar Council dated 10th November 1965 dismissing with costs five appeals preferred by the appellants under section 41 of the Legal Practitioners and Bar Councils Act of 1965, from four different but identical orders all dated 24th May 1968 made by the Tribunal established under section 37 of the aforesaid Act.

2. The short background of these cases is that in the years 1963 and 1964 seven different complaints of professional misconduct were made to the High Court of West Pakistan of which one was filed by Sh. Rafiq Ahmad, Secretary High Court Bar Association against Raja Maula Dad and Raja Muhammad Ayoob Khan, appellant while the other six were by private litigants three each against the two appellants. The allegations against the appellants by and large were that they managed to procure clientele and secured engagements fraudulently through touts. The details of the specific modus operandi resorted to by the two Advocate‑appellants in each case need not be set out in detail as arguments were confined before us only to technical and legal grounds and the decision thereon would be determinative of the fate of the appeals. Suffice it to say, however, that on receipt of the complaints under the Bar Councils Act of 1926 the High Court suspended the licences of the appellants and referred the complaints to the Tribunal for inquiry under section 10 and submission of report under section 12 of the aforesaid Act. As the inquiry lingered on for about 21 years the appellants approached the High Court for restoration of their licences.

3. With the coming into force of the Bar Councils Act of 1965 the entire procedure relating to disciplinary action against Advocates and legal practi tioners was altered and the Bar Council itself was authorised to deal with disciplinary matters and exercise penal powers which under the Act of 1926 vested in the High Court. Section 52 (c) of the new Act provided for the automatic transfer of all proceedings pending before the Bar Council of a High Court to the Provincial Bar Council set up under the new Act. Taking the view that it was competent to deal with the matter, the Bar Council did not consider it necessary to submit the report of its inquiry to the High Court .as required under the 1926 Act. In fact while resisting the application of Raja Muhammad Ayoob Khan, appellant for the restoration of his licence before the High Court learned counsel appearing on behalf of the new Bar Council contended that in view of the change in law the High Court had no longer the jurisdiction to deal With the matter. It was argued that since the change was merely procedural in nature section 6 of the General Clauses Act did not save pending proceedings. The contention was, however, overruled by the High Court on the ground that the change in the law was not merely procedural in nature and that the vested right of the appellant to get the matter decided by the High Court could not be taken away on a reasonable interpretation of section 52(c) of the new Act.

4. Although the High Court dismissed the petition of Raja Muhammad Ayub Khan for the restoration of his licence vide order dated 17th May 1966, West Pakistan Bar Council nevertheless moved a review petition on the question of jurisdiction which too was dismissed vide order dated 21st July 1966. Provisional permission to practice at the bar till further orders was, however, accorded to Raja Muhammad Ayoob Khan with a direction to the Provincial Bar Council to submit its report as early as possible. Earlier the suspension order against Raja Maula Dad was also withdrawn by a Division Bench of the High Court vide order dated 26th January 1966 on the ground of inordinate delay in the submission of the report.

5. Feeling aggrieved the Bar Council preferred Civil Petition for Special Leave to Appeal No. 528 of 1966 before this Court which was dismissed vide order dated 20th October 1966 and the view taken by the High Court on the question of jurisdiction in respect of pending matters was re‑affirmed. Notwithstanding this, however, the reports called for by the High Court as far back as 8‑1‑1964 in the case of Raja Maula Dad and 20‑2‑1964 in the case of Raja Muhammad Ayoob Khan under the 1926 Act were never submitted by the Bar Council. On the other hand in 1967 the Bar Councils Act of 1965 was amended by Act I of 1967 so as to confer jurisdiction on the Bar Council also to deal with pending cases. The relevant provision is contained in the substituted section 37 of the 1965 Act as amended and reads as follows:

6. "37.‑(1) The Provincial Bar Council may constitute one or more Tribunals and each such Tribunal shall consist of three persons elected by the Provincial Bar Council, of whom‑

(a) one shall be from amongst the Judges of the High Court who are members of the Provincial Bar Council, and he shall be the Chairman of the Tribunal ; and

(b) two shall be from amongst the members of the Provincial Bar Council or from a panel of Advocates and persons who have held high judicial and legal office which panel shall be prepared and "maintained by the Provincial Bar Council with the previous approval of the High Court:

7. Provided that persons who have been elected to the Disciplinary Committee of the Pakistan Bar Council and the Advocate, General shall not be members of any Tribunal:

8. Provided further that, if the Chairman is, by reason of absence or otherwise, unable to perform the functions of his office, or for any reason declines to perform those functions, the Chief Justice of the

9. High Court may nominate any other judge of the High Court to perform those functions, and the Judge so nominated shall, for so long as he performs those functions, be deemed to be the Chairman.

(2) Notwithstanding anything contained in this Act,‑

(a) where any enquiry is pending before a Tribunal appointed under section 11 of the Bar Councils Act, 1926 (XXXVIII of 1926), such enquiry shall be completed by that Tribunal and shall be disposed of in the manner provided in that Act ;

(b) where any enquiry is pending before a Tribunal constituted under this Act at the time of the expiry of the term of the Provincial Bar Council, such enquiry shall be completed and disposed of by that Tribunal:

10. Provided that the Chairman of the Provincial Bar Council may, by an order in writing, direct that any such enquiry as is referred to in clause (a) or clause (b) shall be completed and disposed of by a Tribunal elected by a new Provincial Bar Council under sub section (1), and thereupon the enquiry shall stand transferred to such Tribunal which shall proceed with the enquiry from the stage at which its predecessor had left it."

11. A direction in terms of the above proviso was issued by the Chairman of the Bar Council. Being thus reassured of its jurisdiction the Bar Council proceeded to deal with' the matters and finding the appellants guilty of misconduct suspended their licences for a period of five years in the remaining cases. As stated earlier five appeals tiled by the appellants before the Pakistan Bar Council under section 41 of the Act were dismissed by the Disciplinary Committee by a consolidated order giving rise to the present appeals.

12. Civil Appeal No. 94 of 1969 was filed by Raja Maula Dad, Advocate who is reported to have died on 31st August 1971. Since this is a case of personal right which does not survive to the legal heirs of the deceased the appeal is, therefore, abated as a result of the death of the, appellant and accordingly stands disposed of.

13. In the other four Appeals Nos. 95 to 98 of 1969, the sole question raised on behalf of Raja Muhammad Ayoob Khan appellant before us was that despite the transfer of the enquiry to the new Bar Council under the proviso to section 37(2)(b) of the Bar Councils and Legal Practitioners Act, 1965 as amended, it had to be "completed and disposed of" in accordance with the provisions contained in sections 10 and 11 of the 1926 Act under which the proceedings were initiated in the first instance. It was argued that under the latter Act the power to take disciplinary action vested in the High Court from whose order a constitutional right of appeal was also available to the appellant and thus a valuable right of getting his case decided by the High Court having accrued to him, it could not be taken away except by an express provision or by necessary intendment. It was argued that if in fact this were the real intention of the law‑giver it could have been specifically so provided in which event section 27(2) as amended would have been deleted as being an unnecessary superfluity. It was argued that the only reasonable interpretation that could be placed on the expression "completed and disposed of" as employed in section 37(2)(b) was that enquiry should be completed in the first instance and this finding should be forwarded to the High Court for further action as provided under the 1926 Act. Reliance was placed in this regard on Sutlej Cotton Mills Ltd., Okara v Industrial Court, West Pakistan, Lahore (P L D 1966 S C 472) and Life Insurance Corporation of India v. United Commercial Bank, Karachi and another (P L D 1962 Kar. 837). Adnan Afzal's case (P L D 1969 S C 187) was sought to be distinguished on the ground that in that case retrospectivity was spelt out by the Court in favour of a law which was purely procedural in nature and that authority was therefore not relevant to the facts of the instant case.

14. Learned counsel appearing for the Punjab Bar Council contended that the 1926 Act had been repealed and that the proviso to section 37(2) clearly provided for the transfer of pending enquiries to the new Bar Council, furthermore under the existing law an appeal from the order of a Tribunal before the Disciplinary Committee and a second appeal from the order of the latter before the Supreme Court were provided respectively under section 41 and 42 of the new Act. It was submitted that enquiry proceedings under the Bar Councils Act wise purely of an administrative and procedural nature and as such there was no question of a vested right leaving accrued to the appellant. It 'vas further submitted that even otherwise the decision of the Disciplinary Committee, which as constituted is headed by a fudge of the Supreme Court enjoys a sanctity no less than that of a decision of a High Court. Reliance was placed on Messrs East & West Steamship Company v. Pakistan (P L D 1958 S C (Pak.) 41) and M. Ibrahim v. The Crown (P L D 1955 F C 14).

15. The present Secretary of the High Court Bar Association represented Sh. Rafiq Ahmad, respondent as his predecessor‑in‑office and addressed arguments on his behalf. Adopting the arguments of the learned counsel representing the Bar Council, this learned Advocate further relied on the provisions contained in subsection (3) of section 38 in support of the arguments that the expression "completed and disposed of also included the power to penalise and award punishment.

16. Before proceeding to consider the contention raised bar the counsel for the parties it is necessary to examine the relevant statutory provisions which form the basis of the arguments. Section 37 has already been reproduce, in the earlier part of the judgment and sections 3&(3) and 52(c) of the 1965 Act as amended are reproduced below:

17. "38(3)(a).‑On completion of the enquiry the Tribunal may either dismiss the complaint or where reference to the Tribunal was made at the motion of the Provincial Bar Council, direct that the proceedings be fled; or it may make an order imposing any of the penalties referred to in subsection (1) of section 36.

(b) there the Tribunal makes an order for the suspension of an Advocate from practice, it shall specify the period of suspension, and for that period the Advocate shall be debarred from practising in any Court or before any authority or person in Pakistan.

18. 52(c).‑All proceedings pendings before the Bar Council of a High Court in respect of any disciplinary matter or otherwise shall stand Sgt transferred to the corresponding Provincial Bar Council."

19. We cannot fail to appreciate that the view taken by the Disciplinary Committee does not appear to be without basis or otherwise wholly untameable. Ordinarily one should think that "completion and disposal" of an enquiry would mean the exhausting of all necessary steps in the finalisation of the enquiry in compliance with the prescribed procedure so that nothing more is to be done in that regard. A typical example would be furnished by an Enquiry in the nature of commitment proceedings. Obviously "completion and disposal of an Enquiry" would connote the finalisation of the enquiry up to a stage prior to and distinguishable from that of award of punishment, which falls within the jurisdiction of a higher forum, after holding a trial in accordance with all the relevant provisions of the Code of Criminal Procedure. Of course it has to be borne in mind that such an interpretation presupposes or is based on the assumption of redundancy in the use of one of the two words "completion" and "disposal", of which each per se would be good enough to convey the sense of the finalisation of enquiry. Such an attribution of looseness and superfluity of expression to the law‑giver is wholly unjustified and undiscoverable on any known principle of interpreta tion. On the other hand the normal presumption would be that every single word has been used with a purpose and though apparently similar to or synonymous with the expression preceding or following it, is inserted wit a view to convey a distinct meaning or implication different an distinguishable from those conveyed by other similar expressions used in the same context. A plain reading of section 38(3) reproduced above goes a long way to resolve the controversy inasmuch as according to the provision contained therein, after the "completion" of Enquiry, its "disposal" might take the form of one of three eventualities namely, (i) dismissal of the complaint, (ii) filing of the proceedings, or (iii) imposition of any of the penalties or reprimand, suspension or removal from practice. It would not, therefore, be unreasonable to interpret as held by the Disciplinary Committee that disposal includes award of punishment, a stage or situation different, from and subsequent to that of completion of enquiry.

20. But this is not the end of the matter as there is yet another and mote important aspect to be considered. It is a well‑settled principle of interpretation that there cannot be an implied ouster of the jurisdiction of the Superior Courts so as to be inferentially spelt out from vaguely worded and imprecise expressions on the basis of a priori reasoning. Surely of no less importance is the principle that a vested right cannot be taken away by repeal of law and is saved under section 6 of the General Clauses Act. Ifs the Legislature had intact intended to oust the jurisdiction of the High Court in matters pending under the old Act it could have unequivocally said) so in which event the categorisation of cases envisaged by section 37 would be wholly unnecessary and meaningless. It can hardly be disputed that to have his case decided by the High Court is the most valuable right of a litigant and as it accrued to the appellant in the instant case under the Act of 1926 it stands protected under section 6 of the General Clauses Act. In the absence of a clear and categorical ouster of the High Court's jurisdiction which we do not find in this case the presumption would be in favour of the preservation of the right rather than its extinction. As stated earlier we do appreciate that the interpretation placed by the Disciplinary Committee is not wholly impossible yet it certainly appears, to have ignored the more important principle of the categorical ouster of jurisdiction of Superior Courts and protection of vested rights. It would not be out of place to mention in this context the distinction clearly brought out by this Court in Asma Jilani's case (P L D 1972 S C 139) between "jurisdiction" of the Superior Courts and their inherent "judicial power" of interpretation including that of provisions relating to the ouster of their jurisdiction so as to define the precise limit and scope of ouster.

21. The argument that the Disciplinary Committee constituted as it was with a Judge of the Supreme Court as its Chairman, was no less important and respectable than the High Court is rather misconceived inasmuch as the High Court primarily derives its jurisdiction from the Constitution which also guarantees its independence. It is the sanctity of that source and the firmness of that foundation which inspires so much public confidence in its proceedings and orders. Obviously orders made by Judges of Superior Courts functioning in a different capacity under different statutes cannot claim entitlement to that level of judicial prestige and public faith, Thus a vested right of getting his case decided by the High Court having once accrued to a litigant cannot be taken away except by conferment of retrospectivity on a subsequent law by express provision or necessary intendment. The well known decision of the Privy Council in the case of The Colonial Sugar Refining Co. Ltd. v. Irving (L R 1905 A C 369) is the basic authority in support of the principle. Same view was taken by this Court in Sutlej Cotton Mills Ltd. v. Industrial Court (P L D 1966 S C 472) of which the judgment was written by My Lord the Chief Justice. In that case a petition for special leave to appeal was filed under Article 160 of the abrogated Constitution of 1956 read with the Laws (.Continuance in Force) Order, 1958, only a day prior to the coming into force of the Constitution of 1962. The petition was accepted, of course after the coming into force of the new Constitution. At the hearing of the appeal before the Supreme,; Court a preliminary objection was raised that ‑the appeal was incompetent inasmuch as under Article 58(3) of the 1962 ,Constitution, the Supreme Court had jurisdiction to hear and determine appeals from judgments, decrees, orders and sentences of a High Court only and not from that of a Tribunal. On the principle enunciated in the Colonial Sugar Refining Co. Ltd.'s case. It was held that appeal by special leave allowed under Article 160 of the prescribed Constitution of 1956 was in the nature of a right and not a mere matter of procedure and it gave a person aggrieved by an order of a Court or Tribunal the right to approach the Supreme Court for special leave even in cases where ordinarily no appeal lay. A valuable right had thus vested in the appellant on the day he filed his petition and if the petition were heard on that day .the objection raised would not have been available. It was held that this right could not be denied to him merely because in the ordinary course of the proceedings of the Court the petition came up for hearing after the coming into force of the new Constitution. The objection was, therefore, overruled.

22. In the circumstances of the case before us there is also a similar and in fact more important consideration which lends further support to our view. We have already referred to the repeated directions by the High Court calling upon the Bar Council to hold an inquiry and submit the report to it. This direction was never complied with by the Bar Council, despite the lapse of 2 years. Obviously, therefore, it could not be allowed to take advantage of the avoidable delay on its part if not of the dilatory tactics allegedly resorted to by it in the submission of the report on the erroneous impression and ground judicially declared untenable that the High Court's authority stood pre‑empted by the Bar Council in pending matters. The High Court referred the matter to the Bar Council under the 1926 Act early in 1964. The Legal Practitioners and Bar Councils Act of 1965 and the amending Act I of 1967 came into force on 9th February 1965, and 4th January 1967, respectively and one cannot avoid the impression that during all this period the Bar Council deliberately sat over the enquiry which, despite repeated directions by the High Court was allowed to linger on till such time as the law was amended. But for this delay the matter would have been decided under the 1926 Act.

23. As stated earlier even the new law as amended did not completely and once for all do away with the powers of the High Court to deal with the matter under the old procedure but provided for optional and discretionary P substitution of the High Court's authority by the new Bar Council which could not on a reasonable interpretation be deemed to have taken away a valuable right vesting in the appellant. The position in Adnan Afzal's case was altogether different and in fact quite to the contrary. In that case the point for consideration before this Court was as to whether the West Pakistan Family Courts Act, 1964 affected the jurisdiction of the Magistrates under section 488, Cr. P. C. and further whether it also affected proceeding already pending. Both the points were found in the negative for the reasons firstly that the provisions of the West Pakistan Family Courts Act, 1964 were more beneficial in so far as the scope of enquiry and grant of relief were concerned; secondly, the Act gave exclusive jurisdiction to the Family Courts without affecting in the least the rights already accrued to a litigant and therefore, the change of forum and the alteration of mode of trial, rendered it merely procedural in nature so as to be given retroactive effect ; and lastly there was no indication in the law to the contrary affect, which of course is apparently there in the instant case.

24. As a result of the above discussion we find that the appellant was entitled to get his cases decided by the High Court under the 1926 Act and the Disciplinary Committee set up under the 1965 Act did not have the jurisdiction to deal with the matters. Accordingly, without going into the merits of the case we allow the appeals, set aside the impugned orders and remand the cases to the High Court for decision under the 1926 Act treating the order of the Disciplinary Committee as its report under section 2 of the said Act of 1926. There shall be no order as to costs.

25. S. A. H. Appeal allowed. Case remanded.