1. SAIYED SAEED ASHHAD, C.J.--In the Constitutional petition, the petitioner has sought the following reliefs:--
(a) Declare the impugned order dated 27-1-2001 passed by the respondent No,2 is illegal, without lawful authority and of on legal effect.
(b) Declare that notification dated 27-1-2001 issued and published under the authority of the respondents declaring respondent No,3 to be entitled to fill the vacancy created by Mr. S. Ali Aslam Jafry from District Khairpur is illegal, without lawful authority and of no legal effect.
(c) Declare that the petitioner is entitled to be a Member of Sindh Bar Council from District Khairpur.
(d) Award cost of the petition.
(e) Grant such other relief or reliefs in view of the nature and circumstances of the case.
2. The grievance of the petitioner is with regard to the order of the Chairman, Sindh Bar Council declaring that the seat of the Sindh Bar Council from District Khairpur which had fallen vacant on account of elevation of Mr. S. Ali Aslam Jafery as a Judge of this Court be filled in by Mr. Shall Muhammad Chandio, who had obtained the next highest votes from District Khairpur.
3. ' It was submitted by Mr. Abrar Hasan that the results of the election were declared on the basis of the Divisionwise votes secured by the candidates. In support of his above contention he drew our attention to Annexure ' A' to the petition, which gives the names of the candidates declared elected as well as the votes secured by them. According to Annexure ' A' from Khairpur District of Sukkur Division Mr. S. Ali Aslam Jafery (now Mr. Justice S. Ali Aslam Jafery) was declared elected on having obtained 266 votes from the six Districts of Sukkur Division. From Khairpur District he had secured 81 votes but from the , results appearing at page 23 of Annexure ' A' it is crystal clear that the results were declared on the basis of the total number of votes secured by candidates from all the Districts of a Division and not merely from the District from which he was to be declared elected.
4. M/s. Mustafa Lakhani and Imdad Ali Awan appearing on behalf of respondents Nos.1 and 3 respectively supported the order of the Chairman, Sindh Bar Council and submitted that the order was in accordance with the provisions of section 16(b), Chapter V of the Legal Practitioner and Bar Councils Act, 1973 (hereinafter referred to as the Act of 1973), which deals with filling up of a vacancy. It will be appropriate to reproduce the above section 16(b), which is as under:-- "16(b).---In the case of a Provincial Bar Council, the vacancy shall be filled by the person who received, in the same election and from the same District or, as the case may be, group of Districts, the highest number of votes next after the member the vacancy in whose seat is to be filled, or if there be no such person, by a person eligible for election to that council from the same District or, as the case may be, group of Districts, who is co-opted by the Provincial Bar Council." 'A bare perusal of the aforesaid section, it is to be observed that any vacancy falling vacant on any account is to be filled by a person who had received the highest number of votes in the same election and from the same District or, as the case may be, group of Districts after the person/member whose seat is to be filled. From perusal of Annexure ' A', it is to be noted that the results were declared on the basis of total number of votes secured by a person/member from the group of Districts from a particular Division as is clear from election of Mr. S. Ali Aslam Jafery (now Mr. Justice S. Ali Aslam Jafery) in the results which declared the elected candidate Mr. S. Ali Aslam Jafery (now Mr. Justice S. Ali Aslam Jafery) was elected as a member from Khairpur District on account of the votes secured by him from all the six Districts or group of Districts of Sukkur Division and not merely on the basis of the number of votes secured by him from Khairpur District. In the circumstances, his vacancy is to be filled by a person who had. secured the next highest number of votes from all the six Districts or group of Districts. According to the results available on record, the highest number of votes, i.e,, 239 after Mr. S. Ali Aslam Jafery (now Mr. Justice S. Ali Aslam Jafery) were secured by S. Mushtaq Hussain Shah and according to the provisions of section 16(b), Chapter V of the Legal Practitioners and Bar Councils Act, 1973 he was to be declared and notified as the elected candidate from Khairpur District.
5. Mr. Imdad Ali Awan, the learned counsel for respondent No,3 objected to the maintainability of this Constitutional petition on the ground that the adequate and alternate remedy was provided by the Act of 1973 for challenging the impugned order and according to the settled principle of law, an aggrieved party was required to have recourse to the alternate and adequate remedy provided by statute, before invoking the Constitutional Jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. He drew our attention to subsection (2) of section 13 of the Act of 1973, which provides an appeal to the Pakistan Bar Council against an order or decision of a Provincial Bar Council, the Supreme Court Bar Association or a Bar Association at the national level within 30 days of passing of such order or decision.
6. Mr. Abrar Hasan vehemently refuted the objection raised by Mr. Imdad Ali Awan and submitted that subsection (2) of section 13 very clearly specifies the order or decision which can be appealed against to the Pakistan Bar Council and submitted that such an order or decision was necessarily to be passed by Provincial Bar Council, the Supreme Court Bar Association or a Bar Association at the national level. He drew our attention to the impugned order and submitted that this order was passed by Advocate-General, Sindh acting as Chairman, Sindh Bar Council alone and it was not a collective decision of the Sindh Bar Council as required under section 5 of the Act of 1973 and, therefore, such an order could not be assailed by way of an appeal provided by section 13(2) of the Act of 1973, thereby compelling the petitioner to invoke the Constitutional jurisdiction of this Court. We have considered the arguments advanced by the learned counsel for the parties with regard to the maintainability of this Constitutional petition and we find ourselves in agreement with the contentions advanced by Mr. Abrar Hasan that the order in dispute did not represent the order of the Sindh Bar Council but was taken by the learned Advocate-General, Sindh individually in his capacity as Chairman of Sindh Bar Council. When a statute provides the constitution or composition of a council or establishment then it is to be represented by the Chairman as well as of the members constituting it and all orders or decisions are to be taken by it collectively and not individually either by the Chairman or any one of the members. As already pointed out earlier, the impugned order represents that it was made by the learned Advocate-General, Sindh individually in his capacity as Chairman and that the members of the Sindh Bar Council had no say therein.
7. Therefore, such an order could neither be said to be an order or decision of the Provincial Bar Council nor it would have any sanctity in law, as the order did not fall within the categories of the orders/decisions enumerated in section 13(2) of the Act of 1973 and it could not be challenged by way of appeal as provided by section 13(2) of the Act of 1973 and the only option for the petitioner was to approach this Court by way of this Constitutional petition.
8. Upon the above discussion we are of the view that the order of the Chairman, Sindh Bar Council dated 27-1-2001 and the resultant Notification No,250/SBC/2001 dated 27-1-2001 cannot be sustained as they are in violation of the provisions of section 16(b), Chapter V of the Legal Practitioners and Bar Councils Act, 1973. The learned counsel for the parties M/s. Abrar Hasan, Mustafa Lakhani, Imdad Ali Awan and Sarwar Khan had agreed that this petition was to be disposed of on merits at Katcha Peshi stage after admission thereof to regular hearing, if it was so required. Accordingly, we admit this petition to regular hearing and allow' the same. The impugned order dated 27-1-2001 and the notification of the same date are declared as null and void and the petitioner is declared as elected candidate from Khairpur District.