KHALID ALI Z. QAZi, J. - The Plaintiffs in this case have challenged, inter alia', the order dated 23.2.2009 passed by the Defendants. Nos. 6 to 9 as the Executive Committee of the Pakistan Bar Council. While the matter was being heard it was pointed out by the Court to the learned counsel , for the parties that Section 13(2) of the Legal Practitioners and Bar Councils Act, 1973 (hereafter: "the 1973 Act") has been amended by Section 4(ii) of the Legal Practitioners and Bar Councils (Amendment) Ordinance, 2007, being Ordinance No. LXIX of 2007 (see PLD 2008 FS 171) (hereafter, "the 2007 Amending Ordinance"). Before its amendment through the 2007 Amending Ordinance, Section 13(2) of the 1973 Act read as follows:- "S. 13(2). Any person aggrieved .By an order or decision of a Provincial Bar Council, the Supreme Court Bar Association or a Bar Association at the national level may, within thirty days of such order or decision, prefer an appeal to the Pakistan Bar Council, whose decision in such appeal shall be final."
2. After the amendment through the 2007 Amending Ordinance Section 13(2) of the 1973 Act read as follows:- : "S. 13(2). Any person aggrieved. By. Any decision, order or resolution, of Pakistan Bar Council, a Provincial Bar Council, the Supreme Court Bar Association, or any other Bar Association may within thirty days of such decision, order or resolution prefer an appeal to the Chairman of, the Pakistan Bar Council, whose decision in such. Matter shall be final."
3. The precise amendment effected by the 2007 Amending Ordinance was that while earlier the appeal in the context of Section 13(2) of the 1973 Act was preferable to the Pakistan Bar Council, however, through the 2007 amendment the appeal had. To be preferred to the Chairman of the Pakistan Bar Council.
4. Mr. Mustafa Lakhani, the learned counsel appearing for the Defendant No. 5, submitted that this was not the end of matter since through another amendment,, effected through Section 4(ii) of the Legal Practitioners and Bar Council (Amendment) Ordinance, 2008, being Ordinance No. VIII of 2008 (PLJ 2009 FS 420) (hereafter: "the 2008 Amending Ordinance"), Section 13(2) of the 1973 Act has been amended yet again; such amendment is hereby reproduced for convenience as follows:- "S. 13(2). Any person aggrieved by an order or decision of a Provincial Bar Council, the Supreme Court Bar Association or a Bar Association at. The national level may, within thirty days of such order or decision, prefer an appeal to the Pakistan Bar Council, whose decision-in such appeal shall be final."
5. Prime facie, the 2008 amendment seems to restore the old position prior to the 2007 Amending Ordinance, when the appeal under Section 13(2) of the 1973 Act was to be preferred before the Pakistan Bar Council. However, it is a common ground and an admitted position that the 2008 Amending Ordinance having not been ratified by the Parliament has lapsed by efflux of time.
6. 'Juxtaposed with the above factual matrix, M/s. Rasheed A. Razvi and Salahuddin Ahmed, Advocates, appearing for some of the Plaintiffs, have contended that upon the expiry of the 2008 Amending Ordinance, the provisions of the earlier 2007 Amending Ordinance stand revived.
However, it is made clear by both the learned counsel that since the 2007 Amending Ordinance was brought about in the wake of an unlawfully imposed emergency in November, 2007, they neither recognize the subject amendment (i.e. The 2007 Amending Ordinance) nor the purported saving clause contained in Article 270-AAA of the Constitution. Both the learned counsel contend that' Article 270-AAA though void the same having been validated by the Supreme Court' in the case of Tikka Muhammad -Iqbal v. General Pervez Musharaf (PLD 2008 SC 6/178), till such time the Supreme Court revisits the said Tikka Muhammad Iqbal case, the illegalities/un-constitutionalities flowing from the Proclamation of Emergency of November, 2007 cannot be rectified. It is additionally submitted by both M/s. Rasheed Razvi and Salahuddin Ahmed that as the matter concerns an intricate interpretation of Constitutional provisions, the same may be referred to the Hon'ble Chief Justice of this Court for the purposes of placing this suit before a larger Bench.
7. Although Mr. Mustafa Lakhani, the .Learned counsel for the Defendant No. 5 and the other learned counsel appearing for the Defendants, are congruous with the learned counsel for the Plaintiffs with regards the illegality and un.-constitutionality of the Proclamation of Emergency of November, 2007 and all the subsequent orders and actions including Article 270-AAA of the Constitution, in contrast they have strongly opposed the referral of the present matter to the Hon'ble Chief Justice of this Court for the purposes of constituting a larger Bench to hear this case.
8. I have given-my anxious thought to the matter at hand. The provision enabling a Single Judge sitting on the original civil jurisdiction of the Sindh High Court at the Karachi to refer a suit to the Chief Justice of this Court to constitute a larger .Bench for-the purposes of hearing the same, is contained in Rule 10 of the Sindh Chief Court Rules (OS) [hereafter referred to as: "the SCCR (OS)"], which for the sake of convenience is reproduced as follows:- "Rule 10. Reference to two or more Judges, If it shall appear to any Judge either on the application of the party or otherwise, that a suit or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Judge who shall make such order thereon as he thinks fit."
9: The language of the said Rule 10 of the SCCR (OS) is rather clear. It is only where the Single Judge construes a conclusion that a suit or matter is to be more advantageously heard by a larger Bench that he can make a reference to the Hon'ble Chief Justice of the High Court for constituting a larger Bench. In this case, the Proclamation of Emergency of dated 3.11.2007 (PLD 2008 FS 108), the Provisional Constitutional Order No. 1 of 2007 dated 3.11.2007 (PLD 2008 FS 110), the Constitution (Amendment Order) 2007 being President's Order No. 5 of 2007 (PLD 2008 FS 114), the latter prescribing the much debated Article 270-AAA of the Constitution seemingly validating the actions taken from 3.11 .2007 (when the emergency was imposed) till the revocation of such emergency have been validated by the Supreme Court of Pakistan in the case of Tikka Muhammad Iqbal v.
General Pervez Musharraf (the short order is reported in PLD 2008 SC 6, while the long and reasoned judgment is. Reported in PLD 2008 SC 178. Even the review in this respect has been dismissed (see Tikka Muhammad Iqbal v. General Pervez Musharraf PLD 2008 SC 615).
10. In this backdrop I find force in the joint contention of M/s. Rasheed Razvi and Salahuddin Ahmed, Advocates for the Plaintiffs, to the extent that the correction of the Constitutional and legal order, if any, will have to emanate from the Supreme Court. This being so, in my opinion any referral to the Hon'ble Chief Justice of this Court under Rule 10 of the SCCR (OS) will be nothing but an exercise in futility since even the largest Bench of this Court will not be able to overrule the Tikka Muhammad Iqbal precedent of the apex Court cited above. The guidelines if any will have to come from the apex Court. Indeed, it is too well-settled of a principle of law, requiring no reconsideration, that even obiter dicta of the Supreme Court are binding on the High Court, irrespective of the latter's strength (see M. Ismail and' Sons v. Trans-Oceanic Steamship Co. Ltd. (PLD 1966 Dacca 296), Ghaus Muhammad v.-The State (PLD 1978 Lah. 1235), Afaquz Zubair v. Muhammad Idrees (PLD 1978 Kar.
984), Faiz Bakhsh v. Muhammad Munir (1986 CLC 507) Ghulam Mustafa Mughal v. Azad Government of the State of Jammu & Kashmir (1992 MLD 2083), Abdul Razzak v. The Collector of Customs (1995 CLC 1453), Mian Manzoor Ahmed Watto v. The State (2002 YLR 3433), Hafiz-ud-Din v.
Badar-ud- Din (PLD 2003 Kar. 444)r Azad J&K Government v. Ch. Muhammad Saeed, Stenographer (2003 PLC (CS) SC (AJ&K) 789) and Watan Party v. FOP (2005 YLR 388).
11. But then this is not the end of the matter. Having heard the arguments at the Bar and having gone through the* pleadings and documents on record, also the law on the point, It seems that the fate of the present suit, in particular the pending applications; can be conveniently decided without touching upon .The intricate Constitutional question underscored above. I have been able to lay my hands on a judgment of the Lahore High Court reported as Zahoor Ahmed v. Federation of Pakistan (PLD 1999 Lah. 139) wherein it has been held that the Court need not go into the Constitutional questions if the matter could be-disposed of on 'other grounds. To similar effect is the judgment of the Indian Supreme Court reported as K.I. Shephard and 6 others v. Union of India (1987) 4 SCC 431. Wherein it has been held that the Court would not examine the constitutionality of provisions if the case could be disposed of mother grounds.
12. Accordingly, I am of the considered opinion that no case is made out to refer the matter to the Hon'ble Chief Justice under Rule 10 of the SCCR (OS) for constitution of a larger bench and this case will be decided on its own merits by the learned Single Judge sitting on the original civil jurisdiction of this Court, on grounds other than the Constitutional questions discussed above.