CH. EJAZ YOUSAF, J.---This appeal with leave of the Court is directed against the judgment dated 27-3-2007 passed-by a learned Single Bench of the Lahore High Court, Lahore whereby the appellant's writ petition filed against his disqualification for contesting election against a seat reserved for "peasant", was dismissed.
2. Facts of the case, in brief, are that appellant submitted his nomination papers for the reserved seat of "Peasant" in Zila Council, Kasur. Respondents Nos. 3 and 4 filed objections against the same before respondent No,2 which were accepted and his nomination papers were rejected by the Returning Officer vide order dated 16-9-2005. Appeal was filed by the appellant before respondent No,1, assailing the order of rejection of his nomination papers, which too, was dismissed vide order dated 20-9-2005. The appellant challenged the order of the Returning Officer and also of the District Returning Officer through Writ Petition No, 16703 of 2005, in the Lahore High Court, which was admitted to regular hearing on 28th September, 2005 and the appellant was permitted to contest the election against the reserved seat of "peasant". He was subsequently elected, initially as Member of the Local council concerned and thereafter Naib Nazim Zila Council, Kasur. The Writ Petition was however, later on dismissed vide the impugned judgment mainly for the following reasons:--
(a) That nomination of the petitioner was invalid as he was disqualified to contest election against the seat reserved for a "peasant";
(b) That the election of the petitioner was procured on the basis of filing incorrect statement of his assets, etc. And for the same reason the order of the learned Returning Officer dated 16-9-2006 and the District Returning Officer dated 20-9-2005 are upheld; and
(c) Since the petitioner was not qualified to contest the election, result of his elections both as a Member and as a Naib Nazim Zila Council, Kasur were also void.
A cost of Rs,50,000 was also imposed on the appellant as according to the learned Judge in the High Court, he i,e, the appellant had misused the Judicial Process of the Court. Resultantly, the concerned authorities were directed to fill the vacancies in accordance with law/Rules. Being aggrieved, the appellant approached this Court by way of C.P.L.A. No,340 of 2007, which was allowed and leave in the following terms was granted:-- "It is, inter alia, contended by Dr. Babar Awan, learned Advocate Supreme Court appearing on behalf of petitioner that impugned judgment is not in consonance with the provisions as contained in Article 225 of the Constitution of Islamic Republic of Pakistan read with section 70 of the Punjab Local Government Ordinance,2001 It is next contended that various factual aspects of the controversy have been dilated upon by the learned High Court in exercise of constitutional jurisdiction and without affording an opportunity of hearing which could not have been resolved without recording evidence. It is pointed out that writ of quo warranto was issued against petitioner without hearing him as such he has been condemned unheard. It is also pointed out that so far as the alleged default is concerned, it is not correct as the petitioner has finally cleared it on 20- 92005. It is also pointed out that a line of distinction has to be drawn between pre-election and post-election disputes which aspect of the matter has been ignored by the learned High Court in Writ petition filed by the petitioner.
(2) On the order learned counsel appearing for respondent No,4 controverted the above contentions and contended that so far as the constitutional jurisdiction of the learned High Court is concerned, it is evident that petitioner himself filed the constitution petition as such debarred from raising any objection about the jurisdiction.
(3) The jurisdiction of the Court is not governed by the mutual consent of the parties but as per provisions of statute. The petitioner has already been notified as NaibNazim District Kasur. Be that as it may, the petition is converted into appeal and leave to appeal is granted to consider the above points. To be fixed within two weeks. Meanwhile, the fresh election shall not be held and the schedule announced be kept in abeyance."
3. Dr. Babar Awan, learned counsel for the appellant has, inter alia, contended that since respondent No, 4 Ghulam Ahmad Ansari, was counsel for the appellant in the proceedings before the Commissioner of Income Tax Zone V, Lahore, regarding assessment of the appellant's company, i,e, Gohar Maqsood & Co. And had thus acquired knowledge regarding business carried out by the appellant previously, therefore, he while taking advantage of the same not only himself filed objections before the Returning Officer against the appellant but also prompted and asked the respondent No,2 to challenge candidature of the appellant. He added that since the information acquired by respondent No,4 as a counsel for the appellant was a "privileged communication", hence the respondent was estopped under the law to disclose the same what to speak of taking advantage and filing objections against the appellant on the basis thereof. He maintained that since the very objections filed by the respondents were not maintainable, having been incompetently and malafidely filed therefore, it could not have been entertained by the Returning Officer and action taken in pursuance thereof was patently illegal rather void. He has further contended that since respondents Nos.3 and 4 were neither voters in the list nor were they contesting candidates, hence they had no locus standi to object to the nomination of the appellant, that the High Court has gravely erred in law in holding that the appellant was not qualified to contest the election against the seat reserved for "peasant"; that mere fact that the appellant was not mentioned as cultivator in Khasra Girdawri by itself was not a ground for rejection of the appellant's nomination when it was otherwise established on record that he was a "peasant" within the purview of section. 152 read with section 2(xxvi) of the Punjab Local Government Ordinance 2001; and that the election of the appellant could not have been set aside by the Lahore High Court as it was an election dispute and was resolved by the Election Tribunal.
4. Mr. Tariq Mahmood, learned counsel for respondents Nos. 3 and 4, while controverting the contentions raised by the learned counsel for the appellant has stated that though respondent No,4 was previously a counsel for the appellant in some cases but the objection raised by him as well as respondent No, 3 had no nexus with the same and the knowledge acquired by him in the course of his employment was independent of his engagements. He added that since on the basis of record/documents, it was proved to the hilt that appellant was an industrialist being share holder of a company, therefore, he was not a "peasant" within the purview of section 152(ii) read with section 2(xxvi) of the Punjab Local Government Ordinance, 2001, and thus was precluded to contest the elections. He, after taking us through the definition of "peasant" as appeared in the Punjab Local Government Ordinance, added that representation to a "peasant" was given in the said enactment in order to accommodate landless cultivators and not the industrialists.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the available record with their assistance, minutely.
6. In order to supplement his first contention that since respondent No,4 was appellant's counsel in the proceedings before the Commissioner of Income Tax, Zone V, Lahore, and thus had acquired certain information regarding business of the appellant which he malafidely used in filing objections against him before the Returning Officer, the learned counsel for the appellant has submitted that perusal of the objections filed by the respondent No,4, particularly, the objection Nos. 2,3 and 4, indicate that it were raised on the basis of the information acquired by the respondent in the course and discharge of his professional duties as an advocate for the appellant and since under Article 9 of the Qanoon-e-Shahadat Order, 1984 it was a "privileged communication" , therefore, it was protected under the law of being communicated or disclosed to somebody else or used subsequently particularly against the appellant. He has added that since the respondent No,4 had violated the trust reposed in him and had misconducted himself therefore, the objections filed by him as well as the respondent No,3, being invalid, had lost their efficacy and therefore, could not have been entertained by the learned Presiding Officer. The entire superstructure raised thereon must collapse. In order to ascertain as to whether or not there is substance in the contention raised by the learned counsel for the appellant, we have ourselves carefully gone through the relevant record. Perusal of Order No,9477/9478, dated 26-2-2002 passed by the Commissioner of Income Tax indicates that objector Ghulam Ahmed Ansari had represented the appellant's company i,e, M/s. Gohar Maqsood & Co. As a counsel and was thus fully aware of his business activities/engagements. It would be beneficial to reproduced herein below the said order in extenso, which reads as under:-- "IN THE OFFICE OF THE COMMISSIONER OF INCOME TAX, (APPEALS) ZONE V, LAHORE ORDER NO. 9477/9478 26-2-2002 DATE OF ORDER Name and address of appellant; M/s. Gohar Maqsood & Co. Railway Road Kasur, Zone Zone-B, Lahore.
National Tax Number, 06-19-0167318 Name of Assessing Officer, Mr. Liaqat Ali Khan Assessing Officer Code, S.O.I.T.
Name of Representative Ghulam Ahmad Ansari Status of Representative ADWAR Date of Hearing of appeal 20-02-2002 Appeal No,Date of institution of appealU/SAssessment YearsIncome/loss wealth/penalty assessed Rs,Revenue involved Rs, 9477 8-10-2001 63 1997-98 220,000/- 27,500/- 9478 8-10-2001 63 1998-99 220,000/- 27,500/- APPELLATE ORDER U/S 132 OF INCOME TAX ORD:1979 These two common appeals are filed by an individual, and pertains to assessment years 1997-98 & 1998-99. Objection are raised against:--
(i) Ex parte assessm ent under section 63, not providing sufficient opportunity to the assessee.
(ii) Service of statutory notices, which are denied or effected upon irrelevant persons.
(iii) Estimation of income at Rs,2,20,000 and Rs,2,20,000/- being excessive, unjustified, harsh and arbitrary.
These appeals shall be decided through a combined order.
Mr. Ghulam Ahmad Ansari, Adv./AR of the appellant, attended and pleaded the case as per appeal grounds.
Facts of the case are considered and assessment record is also examined. It is observed that proper 'opportunity, besides other factors has certainly not been allowed to the appellant. It shall be fair and just, if the assessm ent in question are set aside for fresh proceedings with the special reference to allow proper opportunity of being heard to the appellant. Nevertheless, assessee is also directed to make proper compliance of the requirements of the proceedings as to help to arrive at fair and just assessm ents.
Appeals are decided as indicated above.
(Sd)
(QURBAN ALI BUGTI)
Commissioner of Income Tax/Weslth Tax (Appeals) Zone-V, Lahore."
7. Before entering into the proposition, it would be highly appropriate to go through Article 9 of the Qanun-e-Shahadat Order, 1984, which reads as follows:- "9. Professional communications. No Advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this Article shall protect from disclosure----
(1) any such communication made in furtherance of any illegal purpose; or
(2) any fact observed by any advocate, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to such fact by or on behalf of his client.
Explanation. The obligation stated in this Article continues after the employment has ceased."
8. Bare reading of the above provision leads to the inference that the provision in question not only secures the secrecy of professional communication but prohibits in express terms an advocate from disclosing any information, communication, instruction and advice made to him, or received, obtained, and tendered by him during the course of his professional engagement and this prohibition not limited to the knowledge of events or things acquired by him but also extends to facts observed by him in the course and for the purpose of his professional employment.
9. In the case of Hakam v. Emperor (AIR 1934 Lahore 269), one Mst. Allah Wasai was allegedly enticed away by certain persons and a complaint under section 498, I.P.C. To the above effect was lodged. During the pendency of the case a suit was brought by Mst. Allah Wasai in the Civil Court for cancellation of her marriage through Lala Asa Nand, a pleader. In the case under section 498, I.P.C. Mentioned above, Lala Asa Nand was called as a witness for prosecution and asked if the woman was accompanied by another person when she came to him for the purpose of filing the suit, he stated that she was accompanied by another man. He was then asked who that companion was, the pleader refused to answer this question relying on the privilege conferred on pleaders by section 126 of the Evidence Act (now Article 9 of the Qanun-e-Shahadat Order, 1984).
The Magistrate decided that the privilege claimed extends only to communications by the client or to advice given by him but does not protect the pleader from disclosing the name of the person who accompanied the woman. Petition was filed in the High Court challenging order of the Magistrate. It was held that since identity of the friend of Mst. Wasai was observed by the pleader at the meeting with his client, and that anything observed by the pleader at that meeting was in the nature of a confidential communication which the pleader was not obliged to disclose without the consent of his client, therefore, the impugned order was liable to be quashed.
10. In the case of Gopilal and others v. Lakhpat Rai and others (AIR 1918 Allahabad 38), in a suit for revocation of a patent in which the question for decision was the formation and process of working of a stove owned and used by the defendant, the plaintiff examined in evidence a vakil who had been employed by the defendant in some previous proceedings and had, in the course and for the purpose of his employment, visited the defendant's premises at the latter's invitation, in order to make himself acquainted with the working of the stove. Question arose as to whether any knowledge which the said counsel had acquired as to the formation and process of the working of the stove, was protected under section 126 of the Evidence Act. After detailed discussion as to the obligation of the counsel under the relevant provision it was held that the knowledge acquired by the counsel as to the formation and process of the working of the stove amounted to a communication made to him by his client in the course and for the purpose of his employment and therefore his evidence was inadmissible under section 126. It would be instructive to reproduce herein below the relevant discussion from the said judgment, which reads as follows- "Mr. Banerji told us that any knowledge which he had acquired as to the formation and the process of the working of the stove in question was acquired by him only in the course of and for the purpose of his employment as such vakil. The only question therefore which remains is as to whether any communication with the meaning of the section was made to him by his client. The exact fact which he proposed to prove was not disclosed and the nature of the communication was not given. We thought it undesirable to hear the evidence without first deciding whether it could under any circumstances be admissible. We think that as a matter of law it is immaterial whether the communication was verbal, that is to say, by word of mouth, or by demonstration. To our mind if the communication were of such a nature that the client had, for the purpose of enabling his vakil to defend the charge of nuisance, described the formation and the process of the working of the stove in his own language, it would be impossible to contend that such conversation would not be excluded by the rule of professional privilege laid down in S.126. We think it follows that if the client, instead of giving the vakil a verbal description of the process itself, told him to go himself to see it, or pointed it out to him, that would equally be a communication within the meaning of the section.
This view is borne out really by proviso (2) of the section. In England there has been some discussion in the decided cases as to whether the rule of professional privilege applies to facts brought to the knowledge of a professional gentleman by his senses, i,e, facts. Observed by him, and it was decided, at any rate in one well-known case, that where a matter is in Court, any by his senses the counsel becomes aware that an entry in a book has been fabricated or altered after its production in evidence before the Court, this is a matter which is brought to his senses by observation independently altogether of his client and is a matter which, he is bound to disclose.
But the Code says that any fact observed by the vakil in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment is not protected. That clearly indicates that facts observed may be just as much communication as other communication in the ordinary way by word of mouth. The rule is a statutory rule and ought to be strictly applied, for at least two reasons, it is in the interest of the proper and honourable conduct of an honourable profession. If communication coming either directly or indirectly to the knowledge of the vakil or lawyer in the course of and for the purpose of his employment are not protected it is easy to conceive cases in which the vakil might become acquainted with circumstances, for example of crime, which it would be the ordinary duty of a citizen to communicate to the proper authorities, and he would render himself liable for prosecution under the Penal Code for not disclosing such information to the proper authorities. It is clear that professional gentlemen who do their duty ought not to be placed in a position of that kind. Secondly, it is of importance to the public that they should be protected in the right which the law gives them to defend themselves against proceedings of all kinds with absolute freedom, untrammeled by the embarrassm ent of the possible consequences of failure to disclose the full facts within their knowledge to the expert assistance on which they rely for the conduct of their cases. It would be impossible for the ordinary man to consult a lawyer with anything like confidence, for example, about some machinery or system in his own premises about which he is litigating with a rival in trade, if, when the public authorities threatened him with a case for nuisance, he had to call a lawyer to assist him in answering that charge without knowing whether or not the lawyer might not the next day turn round and present his opponent in the civil suit with all the information which the lawyer had obtained from his otherwise unauthorized visit to his client's premises."
11. In the case of State Bank of India v Mrs. J.K. Sohan Singh (AIR 1963 Punjab 27), a commission was issued for examination on interrogatories of an Advocate in Pakistan. It was held that since the interrogatories concerned an admission which could not have been received in evidence and it related to a professional communication about which no evidence could have been led under section 126 of the Evidence Act, therefore, the order was not legal.
12. In the case of Muhammad Yaqoob Khan v. Adalat Khan (1983 CLC 976), an Hon'able Judge i,e, Mr. Justice Saraf, before elevation, had acted as a counsel for one of the parties, namely, Mst.
Feroze Begum, it was held that the obligation laid down in section 9 of the Qanun-e-Shahadat Order, 1984 continues even after the employment is ceased. It would thus appear that there was a legal impediment for a counsel to divulge any communication or information which he happened to receive from his client during his employment as such.
13. What to speak of disclosing the information acquired by an advocate in the course of his employment to somebody else, in the instant case Mr. Ghulam Ahmad Ansari, has gone to the extent of filing a complaint on the basis of the knowledge acquired by him, in the course of his engagement as an advocate which is evident from perusal of order dated 26-2-2002 reproduced herein above in para 7, which, in our view, was not only unethical but was in patent violation of Article 9 of the Qanun-e-Shahadat Order, 1984, because the provision in question expressly prohibits an advocate from disclosing any communication made to him in his capacity as an Advocate for the party.
14. Perusal of the objections filed by Shaukat Ali- Ansari, indicate that they were not only identical but none other than the objections filed by Ghulam Ahmad Ansari himself. It thus leads to the inference that the objections filed by Shaukat Ali Ansari were also based on the information received by Ghulam Ahmad Ansari in the course of his employment as a counsel for the appellant and therefore, the objections filed by him too, were invalid.
15. In the wake of above, it thus, proceeds that since the objections filed by both the respondents i,e, 3 and 4 were not valid, therefore, it could not have been entertained by the learned Presiding Officer. Proceedings carried out in pursuance thereof were therefore, void and of no legal consequence.
16. It is well-settled that constitutional jurisdiction is discretionary in character and, therefore cannot be invoked by a person who has come to the Court with unclean hands and likewise no one can be allowed to take advantage of his wrong act. In this view we are fortified by the following reported judgments:-
(1) West Pakistan Tanks Termination (Pvt..) Ltd. v. Collector (Appraisement) (2007 SCM R 1318)
(2) Inayat Khan and others v. Allah Ditta and others (2007 SCM R 655)
(3) Rehmatullah and others v. Saleh Khan and others (2007 SCM R 729)
(4) Raja Ali Shah v. Messrs Essem Hotel Limited and others (2007 SCM R 741)
(5) Ch. Muhammad Shafi v. Shamim Khanum (2007 SCM R 838)
(6) Muhammad Sharif v. Additional District Judge and others (2007 SCM R 49)
(7) Mauzam Hanif v. Settlement Officer/Collector and another (2006 SCM R 642)
(8) Mohtrama Benazir Bhutto and another v. President of Pakistan (PLD 1998 SC 388)
In view of our above findings, the rest of the contentions raised by the learned counsel for the appellant need not to be attended to.
17. Upshot of the above discussion is that the impugned judgment dated 27-3-2007 passed by the Lahore High Court is set aside and the appeal is allowed with no order as to costs.