' ABDUL HAMEED DOGAR J.---This petition is directed against the order dated 15-11-2006 of a learned Division Bench of the High Court of Sindh, Karachi, whereby C.M.A. No,1455 of 2005 filed by petitioner for restoration of High Court Appeal No,172 of 2004 was dismissed.
2. The grievance of the petitioner is that CMA No,1455 of 2005 seeking recall of the order dated 8-4- 2005 passed in High Court Appeal No,172 of 2004 was dismissed. In the said application it was urged that Mr. Gohar Iqbal, Advocate who had to appear in the matter could not appear due to sudden illness of his wife at 3-00 a.m. Of the night on 8-4-2005 when the matter was fixed in the Court. Since he had to take his wife in the hospital, as such, he could not reach the Court in time but came at 12-00 noon when the matter was dismissed for non-prosecution. According to him, in support of his contention, Mr. Gohar Iqbal, Advocate, filed an affidavit but it was not considered sufficient mainly for the reason that in the said case irrespective of Mr. Gohar Iqbal, Advocate, Mirza Sarfraz Ahmad, Advocate, was also engaged by the petitioner who too remained absent. The learned Division Bench of the High Court has elaborately explained in the impugned order that prior to this order, the case had come for hearing thrice but on each date of hearing, nobody cared to appear on behalf of the petitioner. Again after filing of application for restoration, learned counsel for the petitioner did not seriously pursue the matter and avoided to proceed with the application on one pretext or the other.
3. We have heard Mr. Muhammad Sharif, learned ASC for petitioner at length and have gone through the record and proceedings of the case in minute particulars.
4. In this case, irrespective of Mr. Gohar Iqbal, Advocate, Mirza Sarfraz Ahmad, Advocate was also engaged for appearing on behalf of the petitioner in the learned High Court. On the said date of hearing neither Mr. Gohar Iqbal, Advocate nor Mirza Sarfraz Ahmad, Advocate or Syed Junaid Akhtar, attorney of the petitioner appeared before the learned High Court. Learned counsel for the petitioner has mainly relied upon the affidavit of Mr. Gohar Iqbal, Advocate that since he had to A appear in the instant case, as such, Mirza Sarfraz Ahmad, Advocate or attorney was not supposed to appear. We are not agreed with the above contention. Mirza Sarfraz Ahmad, Advocate being counsel of the petitioner was equally responsible to explain his absence and file affidavit to explain his absence and support the ground of Mr. Gohar Iqbal, Advocate. Even otherwise, the attorney of the petitioner was also equally responsible to pursue his case. This Court in the case of Zulfiqar Ali v. Lai Din and another (1974 SCM R 162) held that mere engagement of a, counsel will not absolve the litigating party to pursue its case diligently and in case the appeal is dismissed for non- prosecution, not only absence of the counsel is to be explained to the satisfaction of the Court, but also the absence of the appellant who is equally responsible for pursuing the case should be explained.
5. Accordingly, we do not find any cogent reason to interfere with the impugned order which being unexceptional is maintained. The petition is dismissed and leave to appeal refused.