' SH. AZMAT SAEED, J.---The lis at hand pertains to a dispute relating to the office of the President of Lahore High Court Bar Association (hereinafter to be referred as LHCBA). The elections for the offices of Lahore High Court Bar Association were held on 28-2-2009, as a consequence whereof, Mr. Justice (Rtd.) M.A. Shahid Siddiqui (as he then was) was elected as President of the Lahore High Court Bar Association while respondent No,3 was elected as the Vice-President. On 13-4-2009, the elected President was elevated to the Honourable Supreme Court of Pakistan with the result that office of the President of Lahore High Court Bar Association fell vacant. The facts as disclosed in this Constitutional Petition and the response filed by contesting respondent No,3 reveals that apparently there was a difference of opinion between Members of the Bar as to how the said vacant office of the President of Lahore High Court Bar Association should be filled. One opinion that surfaced was that fresh bye-elections be held while the other appeared to be that respondent No,3 should assume the office of the President being the duly elected Vice-President. Apparently various resolutions canvassing the divergence of opinion were allegedly filed with the Secretary Lahore High Court Bar Association and a meeting of the General House of the Lahore High Court Bar Association was convened on 24-4-2009 to consider the aforesaid Resolution. What happened on 29-4-2009 is hotly disputed between the parties.
2. It is the case of the petitioners that in fact despite efforts to the contrary, a meeting was convened presided over by Kh. Mehmud Ahmed Advocate former President of the Lahore High Court Bar Association wherein it was unanimously resolved that purportedly under Order 20 of the Lahore High Court Bar Association Rules, a bye-election be held. It was allegedly resolved that former Presidents of the Lahore High Court Bar Association would settle the modalities of the bye- election including the constitution of the Election Board, date of the filing of the nomination papers and the date for election. It is reiterated on behalf of the petitioner that nine former Presidents of the Lahore High Court Bar Association met pursuant to the aforesaid and made the requisite decisions, and it was decided that said decisions would be formally announced on 7-5-2009 in a press conference. However, said press conference was postponed by the Secretary of the Lahore High Court Bar Association, and it was allegedly decided that further meeting of the former President should be convened for 11-5-2009. Unfortunately, the meeting was not convened. In the meanwhile, it appears that both sides of the aisle decided to throw caution and self-restraint to the winds with their antics adorning the front pages of the newspapers. Apparently, the resolution to dismember respondent No,3 was also moved but never presented in the General House.
3. In the above perspective, a Member of the Bar filed a petition under Article 199 of the Constitution in the form of quo warranto challenging the alleged assumption of the office of the President of the Lahore High Court Bar Association by respondent No,3 which was contested by respondent No,3, and the same was eventually disposed of by learned Single Judge of this Court vide order dated 25-5-2009 holding that said petition as not competent. However, in the said judgment Rules of the Lahore High Court Bar Association were dilated upon.
4. Thereafter allegedly a meeting of the General House of the Lahore High Court Bar Association was convened on 28-5-2009 which was stated to have been presided over by Mr. Ahmed Saeed Kirmani, former President of the Lahore High Court Bar Association, wherein, as per the case of the petitioner it was unanimously resolved that bye-election for the office of the President of Lahore High Court Bar Association be held on 6-6-2009, and for the purpose of the aforesaid election, the Election Board was also constituted. A General Meeting of the House for purposes of election and nomination of the candidates is alleged to have convened for 5-6-2009 which apparently descended into chaos and the same was adjourned for 6-6-2009.
5. Allegedly on 6-6-2009 meeting of the General House was in fact convened under the Chairmanship of Mr. Ahmed Saeed Kirmani in which the Members formally nominated the petitioner and Mr. Nisar Kausar as candidates for the office of the President of the Lahore High Court Bar Association. It is alleged that in fact the election thereafter took place in which petitioner secured 715 votes while her opposing candidate polled 97 votes, as a consequence whereof allegedly the petitioner stood elected as the President of Lahore High Court Bar Association.
6. On 6-6-2009 respondent No, 3 filed a petition before the Punjab Bar Council challenging the said elections and praying that respondent No,3 be considered as the President of Lahore High Court Bar Association, and his opposite party be restrained from interfering in his functions/affairs. Said petition was contested by the present petitioner who did not acknowledge the jurisdiction of the Punjab Bar Council to interfere in the matter. Anyhow the Punjab Bar Council vide its order dated 24-6-2009 directed that fresh elections be held for the office of the President of Lahore High Court Bar Association on 11-7-2009 under the supervision of the Executive Committee of the Punjab Bar Council. It is the case of the petitioner that said order was passed with the consent, which was accepted by the petitioner for resolution of the dispute. However, this is controverted by respondent No,3 by vehemently denying that he ever consented to or agreed to the decision for the said order.
7. Thereafter, respondent No,3 filed an appeal against the order dated 24-6-2009 before the Pakistan Bar Council on 8-7-2009, in which, notices were issued, whereafter, the captioned petition was filed on 9-7-2009 challenging the jurisdiction of Pakistan Bar Council to adjudicate upon the matter which was accompanied inter alia by a civil miscellaneous application 1 of 2009 seeking interim relief restraining the Pakistan Bar Council from passing any interim order staying the election. After due notice the matter heard by this Court on 10-7-2009 when this petition was admitted for regular hearing. However, the interim relief as prayed for by the petitioner was not granted. And the Pakistan Bar Council while hearing the appeal did not pass any interim order restraining holding of the elections. Consequently election to the office of the President Lahore High Court Bar Association are stated to .Have been held on 11-7-2009, in which, the petitioner and other candidates participated, and the petitioner admittedly polled the highest number of votes, and as such was declared the elected President. Whereafter, Pakistan Bar Council issued a press release that appeal of respondent No,3 had been accepted with the consequence that election of the petitioner declared as null and void, whereupon, civil miscellaneous application 5 of 2009 was filed wherein this Court vide order dated 8-10-2009 suspended the operation of the order of the Pakistan Bar Council. A copy of the said order of the Pakistan Bar Council has since been placed on record.
8. In the above perspective, learned counsel for the petitioner contends that Pakistan Bar Council had no jurisdiction to sit in appeal against the order dated 24-6-2009 of the Punjab Bar Council passed with consent of the parties. It was next canvassed that even otherwise the election has been held and the electorate has spoken in favour of the petitioner, therefore, will of the Members of the Bar should not be subverted and be permitted to prevail. Mr. Ahmed Awais, learned counsel for the petitioner next argued that during the pendency of the Constitutional Petition, Pakistan Bar Council passed an order in a mala tide manner and in direct defiance of the order of this Court dated 25-5-2009 supra, and in view of the changed scenario this Court should take judicial notice of the aforesaid illegal order, and the same should be set aside upholding the election of the petitioner. In support of his contentions, learned counsel placed reliance on Muhammad Aslam v.
Member Board of Revenue PLD 1980 SC 45; Federation of Pakistan v. Haji Muhammad Saif Ullah PLD 1989 SC 166; Manzoor v. Rehabilitation Authority PLD 1957 Lahore 228 and Dad Muhammad v. Bassa PLD 1965 Lahore 77.
9. Learned counsel for respondent No,3 controverted the contentions being raised by the learned counsel on behalf of the petitioner. At the very outset it was asserted that this Court had no jurisdiction to sit in appeal over any order of the Appeal Committee of the Pakistan Bar Council in view of section 52 of the Legal Practitioners and Bar Councils Act 1973. Adds that in view of the availability of the alternate remedy, writ petition is not maintainable before this Court. It was next contended that Lahore High Court Bar Association is neither recognized, nor registered nor incorporated by any statutory rule.
10. While referring to the historical perspective of the Lahore High Court Bar Association, learned counsel for respondent No,3 contended that the Lahore High Court Bar Association Rules relied upon by the learned counsel for the petitioner were never approved by the Judges of this Court and in fact the Lahore High Court Bar Association Rules for affiliation of the District Bar Associations of the Punjab with the Lahore High Court Bar Association were approved by the Judges of this Court on 11-11-1938, and the said Rules are not relevant for adjudication of the lis at hand. It is next maintained that the Punjab Bar Council has the jurisdiction in the matter pertaining to dispute qua the elections. In this behalf it is contended that in exercise of powers conferred on Punjab Bar Council by virtue of section 55 of the Legal Practitioners and Bar Councils Act 1973, Punjab Rules of Business of Bar Association Memorandum of Association were framed on 7-12-1981. Originally the said Memorandum of Association governed the business of the Bar Associations except the High Court Bar Association. However, through a subsequent amendment in 1991 said Memorandum of Association was made applicable to the High Court Bar Association including the Lahore High Court Bar Association, therefore, the rights and interests of the parties must be determined and decided thereunder. And in terms thereof, respondent No,3 has assumed the office of the President of the Lahore High Court Bar Association, and in this behalf, it is further contended that Punjab Bar Council therefore was vested with the jurisdiction to adjudicate upon the dispute inter se the parties, and any order passed by the Executive Committee of the Punjab Bar Association was therefore appealable before the Pakistan Bar Council. It was vehemently argued that the order dated 24-6-2009 was not a consent order, therefore, the same was appealable before the Pakistan Bar Council. In the alternate, it was contended that even if Rules 20 and 21 of the Lahore High Court Bar Association Rules were applicable, the vacancy of the office of the President, the Vice-President automatically assumed the said office and no bye-election could be held. Adds that the observations of another Bench of this Court in its order dated 25-5-2009 are mere obiter dicta which are not binding upon this Court, especially when the Constitutional Petition filed against respondent No,3 was in fact dismissed. It was also asserted that it was the practice of the Bar from the time immemorial that the vacant office of President used to be assumed by the Vice-President, which should not be deviated from as it is a time honored convention and it represents the will of the Members of the Bar. In support of his assertions learned counsel relies on PLD 1996 SC 326 Aljehad Trust v. Federation of Pakistan and others, PLD 1998 SC 161 Malik Asad Ali v. Federation of Pakistan, 2006 YLR 2537 Zehar Ahmed Choudhry v. City District Government Karachi, 2004 CLC 1967 (Karachi) Yousaf Haroon v. Custodian of the Karachi Hotel Project, 2004 CLC 1967 (Karachi)
Bahadur Yar Jang Foundation Pvt v. Government of Sindh, PLD 2009 SC 393.
11. Whereas the learned counsel for the petitioner in rebuttal submits that Memorandum of Association being relied upon by the learned counsel for respondent No,3 has never been acted upon or followed during the course of the elections of the Lahore High Court Bar Association. It is contended that in terms of Memorandum of Association, the elections of the Bar Association are required to be held by 15th of January every year. List of voters is to be displayed by 15th of December and yet consistently election of the Lahore High Court Bar Association including the election of respondent No,3 to the office of the Vice-President was as usual held on the last Saturday of February. Learned counsel has contended that if the Memorandum of Association is applicable, then the elected office-bearer of the Association would be President, Vice-President, Secretary, Joint Secretary and Secretary Library, Auditor and Members Executive Committee which are not the office-bearers who are elected by the Lahore High Court Bar Association. In fact, no Joint Secretary or Secretary Library, Auditors and Members Executive Committee have ever been elected. It is further contended that in terms of said Memorandum of Association, the Executive Committee includes five or more Members elected by the General House. No Members of the Executive Committee other than (office-bearer) have ever been elected by the Lahore High Court Bar Association. Learned counsel for the petitioner has also drawn this Court's attention to the definition of the word 'Member' in the said Memorandum of Association which means a member of district/subdivisional bar association. It has also been pointed out that under the Memorandum of Association, there is a post of Auditor, and no such post has ever been created or filled with reference to Lahore High Court Bar Association. He has also drawn this Court's attention to the question of eligibility to Membership of the Bar Association which includes an Advocate on the Rolls of the Punjab Bar Council, thus it is contended, would include Advocates who are not the Advocates of the High Court, and therefore, the persons who are not the Advocates of the High Court could become Members of the Lahore High Court Bar Association and also vote in the Election.
12. Referring to the aforesaid contradictions learned counsel for the petitioner has contended that if the arguments of the opposite side are accepted, it would result in an absurdity and all elections held since 1992 including that of respondent No,3 as Vice-President would become invalid. In the above perspective, learned counsel has asserted that in fact said Memorandum of Association can have no application to the Lahore High Court Bar Association, therefore, no dispute qua its election can be raised before the Punjab Bar Association under the Memorandum of Association as done by respondent No,3 in the instant case.
13. Heard. Record perused.
14. At the very outset, it may be observed that during the hearing of this petition, this Court exercised all possible restraints in the hope that Honourable Members of the Bar would resolve this issue in a manner acceptable to all parties concerned rather than to seek adjudication thereof by this Court. But unfortunately, the matter remained unresolved, though this Court is confident that efforts must have been made in that regard.
15. Perusal of the contentions of the learned counsel for the parties examined in closer details raise more questions than present answers. The order of the Punjab Bar Council and that of Pakistan Bar Council unfortunately also did not supply the requisite answers to the obvious questions, which have floated on the surface during the course of the proceedings of the lis at hand. It is not necessary that each and every one of such questions must necessarily be answered by this Court.
Said issues which are absolutely essential for adjudication and disposal of the lis at hand must necessarily be confronted. The murky waters must be navigated carefully.
16. The main thrust of the contentions of the learned counsel for the petitioner are that Punjab Bar Council has no jurisdiction in respect of the Lahore High Court Bar Association and its elections as the provisions of section 9 of the Legal Practioners and Bar Councils Act 1973 pertaining the recognition and functioning of the Bar Associations do not pertain to the Lahore High Court Bar Association, and in this behalf, it is contended that the Rules framed by the Punjab Bar Council have never been complied with or followed by the Lahore High Court Bar Association.
17. Incidentally, respondent No,3 had also raised the plea that Lahore High Court Bar Association is not recognized Bar Association. In paragraph 10 of the preliminary objections in the parawise comments by respondent No,3 it is specifically stated "Lahore High Court Bar Association is neither recognized, nor registered nor has been incorporated or recognized by way of any statutory rules".
18. If the contentions of both the counsel to the effect that Lahore High Court Bar Association is not a recognized Bar Association is accepted, then we would find ourselves in the blind alley confronted by provisions of the Punjab Legal Practitioners and Bar Councils Rules 1974, more particularly Chapter VII thereof which deals with the Bar Associations. Rule 7.1 reads as under:-- ' CHAPTER VII ' BAR ASSOCIATION .
7.1 Every association of Advocates ordinarily practicing at a particular place shall apply to the Bar Council for the recognition of the Bar Association. The application shall be filed by the President or Secretary of the Bar Association: Provided that no application shall be entertained in respect of a place where there is already existing a recognized Bar Association."
' Provided further, except as aforesaid, a body or association of Advocates using the words "Association", "Bar", "Council", "Pakistan" or "Punjab" in its name shall be illegal. Any Advocate who is or claims to be member or office-bearer of such association shall be guilty of professional misconduct."
19. Perusal of the afore quoted Rule makes it clear and obvious that no body or association of Advocates can in law exist or use the word A Association without the said body of Advocates being recognized as such by the Punjab Bar Council.
20. If the contentions of the learned counsel are accepted, then the very existence of the Lahore High Court Bar Association would become illegal and all Members. And the office-bearers thereof would become guilty of professional misconduct. For obvious reasons not only the contentions of the learned counsel in this behalf cannot be accepted, but also the provisions of the Legal Practitioners and Bar Councils Act 1973, and the rules framed thereunder must necessarily be interpreted so as to avoid destroying the Association, the Presidentship whereof is so hotly being contested inter se the parties.
21. Legal Practitioners and Bar Councils Act 1973 does not define the term Bar Association. Functions of the Provincial Bar Council are set forth in section 9 and subsection (1) clause (h) deals with recognition and functions of Bar Association. For the sake of convenience, relevant portion of the said provision is reproduced as under:--
9. Functions of a Provincial Bar Council.-- (1) subject to the provisions of this Act and the rules made thereunder, the functions of the Provincial bar Council shall be...
(h) to prescribe conditions for the recognition and functioning of, and to recognize and de- recognize Bar Associations;
22. Perusal of the aforesaid provisions reveals that the Provincial Bar Council may prescribe conditions for the Recognition and Functioning of a Bar Association. Section 56 of the Legal Petitioners and Bar Councils Act 1973 confers a rule making authority on the Provincial Bar Council and section 56 subsection (n) which reads as under:--
(n) the recognition de-recognition and functioning of Bar Associations'
23. The accumulative reading of section 9(1)(h) and section 56(n) reveals that Punjab Bar Council is authorized to provide conditions for B the Recognition and Functioning of the Bar Associations.
Pursuant to Legal Practitioners and Bar Councils Act 1973, the Punjab Legal Practitioners and Bar Councils Rules 1974 were promulgated on 7-7-1974, Rule 7.1 whereof reproduced hereinabove commands that all Bar Associations must apply for recognition by the Punjab Bar Council and no such Association can exist or function unless so recognized. However, there is a proviso to cater for pre-existing Bar Associations, and it is stated that no fresh application would be entertained in respect of a place where there is already a Bar Association. Rule 7.5 is also of some significance and is reproduced as under:- "Where there is an existing recognized Bar Association on the date of coming into force of these Rules, no further application from such place for recognition shall be entertained, but this shall not prevent the recognition of a High Court Bar Association at a place where there is a functioning Bench of the High Court."
24. The afore quoted provision also perceives of a pre-existing Bar Association and specifically deals with the recognition of a High Court Bar Association.
25. In view of above, it is clear and obvious that reference to the Bar Association in the Legal Practitioners and Bar Councils Act 1973 and the Punjab Bar Council Legal Practitioners and Bar Councils Rules, 1974 includes a High Court Bar Association. Learned counsel have been unable to point out any provisions of law which can be interpreted to exclude operation of the aforesaid Act and rules upon the High Court Bar Association, or for that matter to the Lahore High Court Bar Association. Needless to say as has been stated above, if Lahore High Court Bar Association were to be excluded from the ambit of Act of 1973 and the Rules of 1974, the result would put into serious question the very legality and validity of the, Lahore High Court Bar Association.
26. On 7-12-1991 Punjab Bar Council formulated Rules called `Memorandum of Association' which pertained to the functions of a Bar Association. Said Memorandum of Association as originally framed by virtue of section 1 thereof clearly provides that the same come to effect on 18th of November, 1981 and would apply to all Bar Associations of Punjab except High Court Bar Association. The result of the aforesaid promulgation of the Memorandum of Association was that after 1981 functioning of the District and Sub-Divisional Bar Associations were governed and conducted under the said Memorandum of Association, which provide in great detail the number and designation of the office-bearers, dates for the display of lists and eligible members for purposes of voting, date and mode of conducting the elections and for the resolution of disputes pertaining thereto. In the said period by and large the District Bar Association and the Sub- Divisional Bar Association adhered to the said Memorandum of Association and the elections dispute were decided by the Punjab Bar Council in terms of the powers conferred upon it by and in accordance with the Memorandum of Association.
27. It is common ground between the parties and is also an admitted fact that Lahore High Court Bar Association has been in existence for more than a century and after passing through various stages, its internal affairs pertaining to member and designation of its office_ bearers, eligibility of member to vote its mode and date of election were governed by Rules of Lahore High Court Bar Association which were framed in 1930s, and by and large elections to the Lahore High Court Bar Association were conducted in accordance therewith. Even after the promulgation of the Legal Practioners and Bar Councils Act 1973 and the subsequent enactment of the Memorandum of Association in 1981, Lahore High Court Bar Association continued to adhere to the High Court Bar Association Rules and not the said Memorandum. It appears that in 1982 amendment was effected in section 1 of the Memorandum of Association so section 1 subsection (c) which reads as under:-- "it shall apply to all Bar Associations of Punjab including the High Court Bar Association"
28. Despite the aforesaid it is common ground between the parties that even after 1992, when the aforesaid Amendment was effected, Lahore High Court Bar Association continued to conduct its affairs qua its elections under Lahore High Court Bar Association Rules and not the Memorandum of Association.
29. The Memorandum of Association of 1991 as originally framed appear to be tailor-made for a District Bar Association or the Sub-Divisional Bar Association. Though through an amendment in 1992 referred to above, it was purportedly applicable to a High Court Bar Association, yet further amendments to cater for the peculiarities of a High Court Bar Association appear not to have been made or effected. Rule 6 of the Memorandum of Association that any Advocate on the rolls of the Punjab Bar Council and practicing regularly would be entitled to become Member of a Bar Association, meaning thereby that a person who is not an Advocate of the High Court would become a Member of a Lahore High Court Bar Association.
30. Perusal of the provision of the Memorandum of Association while examined in juxtaposition with the Rules of the Lahore High Court Bar Association reveals some dramatic differences. Said deviations are not only limited to the date of display of the eligible voters, the tenure of the office, the number and designation of office-bearers, date of the election but also qua the vacancies and the effect of not holding of annual elections on the prescribed date. It is common ground between the parties that even after 1992 all elections of Lahore High Court Bar Association were conducted in accordance with the Rules of the Lahore High Court Bar Association 1991 as amended in 1992. The election conducted on the last Saturday of February rather than by 15th of January as provided by Rule 45. Incidentally it is provided in Rule 67 of the Memorandum of Association that if the election is not held by 15th of January, Member through a Special General Meeting would elect the Interim President who shall then hold or cause to be held a election in accordance with the Memorandum of Association. Incidentally, the Memorandum of Association provides for an election petition for resolution of the disputes pertaining thereto to be heard and decided by the Executive Committee of the Punjab Bar Council (Rule 64). There is no provision in the Lahore High Court Bar Association Rules for resolution of the election disputes by the Bar Council.
31. In the instant case jurisdiction of the Punjab Bar Council was invoked by respondent No,3 by filing a petition, copy whereof is appended with this petition. Perusal of the said petition reveals that that it does not disclose the provision of law under which it was filed. The present petitioner had objected to jurisdiction of the Punjab Bar Council to entertain the said petition, and vide order dated 24-6-2008, the Executive Committee of the Punjab Bar Council inter alia held that the Punjab Bar Council had the jurisdiction to decide the matter. However, no reason whatsoever for giving said conclusion can be deciphered from the said order. In the decision of the Pakistan Bar Council dated 7-10-2009 while the relevant provision whereunder the Pakistan Bar Council has the authority of control of supervision over the Provincial Bar Councils and given direction thereto have been mentioned, the question of jurisdiction of the Punjab Bar Council to entertain the petition of respondent No,3 has not been adverted to at all.
32. Legal Practitioners and Bar Councils Act 1973 does not contain any provision that refers to appeal being filed before the Punjab Bar Council with regard to dispute regarding the office of the President of a Bar Association. There also appears to be no particular provision relating to a Provincial Bar Council to give direction to a Bar Association which is only authorized to prescribe conditions for the functioning of a Bar. Association as has been noted above.
33. Punjab Legal Practitioners and Bar Councils Rules 1974 in Rule 7.8 thereof caters for an appeal to the Punjab Bar Council by a Member against a Bar Association airing grievance of any act or omission which violates the Constitution of the Bar Association. Said provision does not deal with the dispute inter se the Member regarding the office of the Bar Association. However, Rule 64 of the Memorandum of Association of the Punjab Bar Council pertains to an election petition being filed by any eligible voter challenging the election of any office-bearer. Viewed in the above perspective it appears that perhaps the Punjab Bar Council has exercised powers conferred upon it through Rule 64 of the Memorandum of Association.
34. Pakistan Bar Council has presumed that Punjab Bar Council had the jurisdiction in the matter, and said jurisdiction can only exist under Rule 64 of the Memorandum of Association ibid yet has chosen not to decide the matter in accordance with the said Memorandum of Association. The decision has been made at the behest of respondent No,3, on whose behalf even before this Court great pains were taken to canvass that said Memorandum of Association, was ,in fact applicable to the Lahore High Court Bar Association. Needless to say that if the situation was otherwise, the Executive Committee of the Punjab Bar Council would have no jurisdiction in the matter, and its decision non est in the eye of law, then obviously Pakistan Bar Council would not have any jurisdiction either. This contradiction in the order of Pakistan Bar Council remains unresolved.
35. Be that as it may, the real matter in controversy between the parties is whether upon the vacancy of the office of the President of the Lahore High Court Bar Association, the Vice-President automatically assumes the said office or the said office needs to be filled. The contesting parties before this Court have variously and alternately relied upon Memorandum of Association 1991 as framed by the Punjab Bar Council and the Rules of the High Court Bar Association as the governing law for resolution of this issue. It is proposed to examine the said issue in the light of both sets of Rules.
36. Adverting first to the Memorandum of Association as originally promulgated by Punjab Bar Council in 1991, the question of vacancies is dealt therein in Rule 23 thereof as originally framed, said rule is reproduced as under:--- "Vacancy if the office of an office-bearer becomes vacant during the existing term, the vacant office shall be filled by a member elected by general house within 15 days of the office of this office becoming vacant."
37. Rule 23 was apparently amended in 1997 which now .Reads as follows.
"Vacancy.--If the office of an office bearer becomes vacant during the existing term, in case of an office other than the members of Executive Committee, the same shall be filled in by the Advocate who had secured votes next higher to the elected member, whose office becomes, vacant, and if otherwise, the vacant office shall be filled by a Member elected by show of hands on the number of simple majority in the General Body Meeting of the House within 15 days after such office becomes vacant and in case the vacant office relates to a Member of the Executive Committee, the latter procedure of election at the General Body Meeting by show of hands within 15 days shall be adopted."
38. Term 'Executive Committee' has been elucidated in Rule 24 in the following manner: "Executive Committee.---There shall be constituted an Executive Committee consisting of the following Members:--
(1) President
(2) Vice-President/s
(3) Secretary/s, OR
(4) Joint Secretary
(5) Finance Secretary
(6) Library Secretary
(7) Five to Ten other Members elected by the General House."
39. Accumulative reading of the above Rules makes it clear and obvious that the President is a member of the Executive Committee, and if his office falls vacant, it has to be filled in by a Member elected by the General House through show of hands (if the office was not that of a member of the Executive Committee, then the person who had secured next highest votes shall succeed to the vacant office). Thus, in terms of the Memorandum of Association the office of the President of a Bar Association is not to be filled in by the Vice-President but through an election.
40. Adverting now to the Rules of the High Court Bar Association, the vacancy is dealt with in Rule 19,20 and 21 thereof. Said Rules have been interpreted by another Bench of this Court through order dated 25-5-2009 in Writ Petition 9231 of 2009 which was incidentally filed against respondent No,3 pertaining to the office of the President, which precisely is the issue prevalent in the instant case.
6. Despite the fact that, as noted down in the short order, Malik Saeed Hassan, the learned senior counsel has conceded to the interpretation of Rules 20 and 21, that thereunder a fresh election is envisaged, yet I feel expedient, that it being a question of law and a concession on such a point may not be sometime binding, to interpret the said Rules; besides, the foremost question to be examined in the matter is if the past practice of the Bar shall have overriding effect upon the Rules.
In order to dilate upon and resolve both the propositions, it seems relevant to reproduce the Rules, which falls under Part-II thereof, dealing with the subject of "Management".
' Rule 20 reads:-- "Should the President be absent or office of President becomes vacant at any time the Vice- President shall act as President and the Committee may thereupon elect one of their members to act as Vice-President until the President returns or another elections takes place as the case may be. Should the office of the Vice-President become vacant the Committee may fill up the vacancy in the same manner."
' Rule 21 provides for filling up the casual vacancies and enunciates:-- "Casual vacancies occurring amongst other offices or members may be filled up by appointment made by the Committee. Every such appointment shall hold good until the next elections shall be held."
7. From Rule 20, it is vividly simple and obvious that if the President is absent to perform his functions, the Vice-President shall act as the President till the time the President returns and in case the office of the President becomes vacant for any reason, he again can act as the President but till the time another elections are held (the underline is mine for the emphasis). In this regard, the conspicuous and vital expression of Rule 20 "another elections takes place as the case may be" is fundamental, foundational and conclusive and leaves no room for any other interpretation except that in the eventuality of the vacancy of the office of the President, the Vice-President shall only act as the President till such time another election for filling up the office is held; by no rule of construction, it can be construed that the Vice-President shall ipso facto become the President for the remaining tenure of office; it must be emphatically held that he shall only act till the time another elections in the same year for filling the vacancy are conducted. This interpretation is fortified from the language of Rule, which envisages that in case of vacancies occurring regarding other offices such as the Vice-President, Secretary etc, the process of another election shall not be followed and adhered to, rather it is the Managing Committee, which finds mention in Rule 18, that shall make the appointments to the vacant offices and the appointee shall continue till the next election. The expression "next election" does not mean "another election" but the election" for the subsequent year, whereas another election is the one, which should be in the same year. Therefore, it is held without any doubt or reservation that according to the correct and true interpretation of the noted Rules, when the vacancy, as in issue, shall occur, the election has to be necessarily and imperatively held for filling it up.
8. Despite the above, the learned counsel for the contesting respondents has argued that in 150 years of the Bar history, it has been the practice that whenever the vacancy in the office of the President has occurred, the Vice-President shall take over as the President for the remaining tenure and this practice, which is in the nature of a custom, tradition or a convention, shall take precedence over the Rules.
9. In order to appreciate this submission, it is expedient to examine as to what is a custom, tradition, and a usage etc. According to the Black's Law Dictionary (Eighth Edition), "custom" means, "A practice that by its common adoption and long, unvarying habit has come to have the force of law." This in my view can be considered as an interchangeable term for the words "tradition", "convention" and "usage", which has been translated in the same Dictionary to mean "Past customs and usages that influence or govern present acts or practices". The meaning of "usage" provides "A well-known, customary, and uniform practice, usu. In a specific profession or business".
"A 'usage' is merely a customary or habitual practice; a convention is a practice that is established by general tacit consent. 'Usage' denotes something that people are accustomed to do; 'convention' indicates that they are accustomed to do it because of a general agreement that it is the proper thing to do." Herbert W. Horwill, The Usages of the American Constitution 22 (1925).
"Although rules of law are often founded on usage, usage is not in itself a legal rule but merely habit or practice in fact. A particular usage may be more or less widespread. It may prevail throughout an area, and the area may be small or large---a city, a State or a large region. A usage may prevail among all people in the area, or only in a special trade or other group. Usages change over time, and persons in close association often develop temporary usage peculiar to themselves." Restatement (Second) of Contract 219 cmt. A (1979)."
' On the other hand, the "law" means and is defined in the same Dictionary as:-- "The regime that orders human activities and relations through -systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society.
' The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards, and principles that the Courts of a particular jurisdiction apply in deciding controversies brought before them.
' The set of rules or principles dealing with a specific area of a legal system."
' The "Rule" has been defined as "an established and authoritative standard or principle; a general norm mandating or guiding conduct or action in a given type of situation."
10. From the above definitions, it is crystal clear that the convention, tradition, usage, shall only emerge and develop on account of a continuous, common and homogenous practice by a class of persons for a long period regarding a subject before it attains some sanctity, recognition and backing of law; it shall only come in existence and being, if there is no law to govern a particular subject; but if a law is intact and in place to meet a given situation and an eventuality, then there shall be no concept or room for the emergence of a tradition, practice etc. No one can claim a right on the basis of a practice or a custom, if it is against the law; even the principles of equity shall give way and shall be subservient to the specific mandate of the law and cannot be resorted to for granting relief to a party if it shall be in infringement of the law/rules. The above are mutually inconsistent concepts and under the true interpretation of law, a right or duty founded on the law has to prevail, rather based on custom etc., which otherwise cannot emerge in violation of the law.
In the instant case, the rules of the Association have been approved by the Honourable Judges of the High Court of Judicature at Lahore vide Letter No,10124-R/XIII-F-2 dated 11th November, 1938. The very purpose of framing the Rules, which provides for most of the eventualities related to connected and concerned with the functions of the Bar Association, is that the affairs of the Bar should be conducted on the basis of the Rules and not on account of any tradition, custom or the practice. If the tradition etc. Are allowed to take precedence over the Rules, which as mentioned earlier, are the rules) the actual law for the running/functioning of the Association, the said Rules shall be held nugatory and redundant, which is not permissible under the law. Even otherwise, the learned counsel for the respondents has failed to cite any law on account of which it can be held that when the mandate of the Rules clearly provides otherwise, any practice, which may have prevailed for any length of time, with the consent of the stakeholder (in this case the Member of the Bar), can be considered to take precedent over the Rules. Such express or tacit consent is nothing more than allowing something to happen in a given situation, but would not mean that it has matured into practice/a "custom" which shall override the Rules. The Rules are meant to be followed, obeyed and are made in order to avoid and eliminate the traditional or customary elements in the performance of an activity. If on account of any mutual understanding of the Bar, in the past, a Vice-President has been allowed to act as the President and none has raised any objection or demanded for another election; it does not mean that the relevant Rule, which is express and clear on the subject and a part of the Rules of the Association, stands annulled and extinguished and should not be followed."
41. Learned counsel for the respondent No,3 has vehemently argued that since the writ petition was dismissed, hence, the learned Judge should not have made observations. Adds that even otherwise those observations were Obiter Dicta and this Court not bound by the same. An attempt was also made to contend that said judgment is per incuriam.
42. Learned counsel for the petitioner has strenuously controverted the said assertions reiterating that a specific issue was raised, which was dealt with, decided and adjudicated upon. Respondent No,3 who was a party in the said proceedings did not opt to challenge the said order, hence, the same attained finality. Learned counsel has further contended that said judgment is fair and correct interpretation of Rules 19,20 and 21 of the Rules of the Lahore High Court Bar Association.
43. I have minutely examined the aforesaid Rules. With reference to the vacancy of the office of the President it is clearly provided that Vice-President shall act as President till the President returns of another election takes place. With reference to the vacancies ,qua the office-bearers other than the President or the Vice-President, it is prescribed in Rule 21, the same shall be filled up by appointments made by the Committee which shall hold good until the next elections are held. This difference in language makes clear a different intention. Thus, upon vacancy of the office of the President, Vice-President will act as President but only until the election to the office of the President is held. While in respect of the office-bearers other than the President or the Vice- President, the appointment would be made by the Committee till the next elections which obviously are to be held after the conclusion of the current tenure of the said office. Nothing has been stated at the Bar to persuade this Court to hold otherwise than held by the learned Judge in an elaborate judgment dated 25-5-2009.
44. There is another aspect of the matter, respondent No,3 in this case was a party to the proceedings previously pending before another learned Judge of this Court who handed down the judgment on 25-5-2009 but chose not assail the same or seek expungment of the findings/observations, which respondent No,3 is now desperately trying to avoid. Hence, it would be inappropriate and difficult for this Court to ignore/brush aside the same, especially a careful perusal of the said judgment reveals that legal issues have been dealt with in great detail and adjudicated upon, therefore, the aforesaid findings and conclusions cannot be treated as mere Observations or Obiter Dicta.
45. In the instant case, a rare phenomenon was noticed when both the opposing counsel canvassed the same propositions of law though from the opposite sides of the spectrum. While it was the case of the learned counsel for the petitioner that Lahore High Court Bar Association had never followed or adhered to the Memorandum of Association, hence, the same was inapplicable in view of the consistent conventions and practice of the Bar.
46. Mr. Azhar Siddique Advocate learned counsel for the respondent No,3 has also asserted that it has been the convention of the Lahore High Court Bar Association that a Vice-President assumes the office of the President upon its vacancy of the balance period of tenure, and this convention should be upheld by the Courts. In support of his contentions learned counsel has referred to large number of text books on the subject and in this behalf relied upon the judgments referred to above.
The matter pertaining to conventions has been adjudicated upon by the Honourable Supreme Court of Pakistan in Al-Jehad Trust's case, and the relevant portion therefrom is reproduced as under:--
29. "I am inclined to hold that the distinction which was brought out by A.V. Diecy in 1885 between laws and conventions as to the enforceability and non-enforceability by the Courts is no longer holding the field. With the passage of time, the other eminent Jurists have not adhered to the above distinction. They have emphasized the importance of the Constitutional conventions for proper operating/functioning of . The Constitutions. Jennings has put it very beautifully by explaining that the Constitutional conventions provide "flesh which clothes the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas". The above view has been reiterated by the other Professors/Jurists of international repute. Even the President of Indian Constituent Assembly Dr. Rajendra Prasad, while introducing a bill for the adoption of Indian Constitution in 1950 pointed out in his speech that "many things which cannot be written in a Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions". The Indian Supreme Court, after reviewing the treatises on Constitutional Law and the case-law in the case of Supreme Court Advocates on Record Association (supra) has held that there is no distinction between the "Constitutional Law" and an established "Constitutional convention" and both are binding in the field of their operation. I am also of the view that the Courts, while construing a Constitutional provision, can press into service an established Constitutional convention in order to understand the import and the working of the same, if it is not contrary to the express provision of the Constitution.
' It is also evident that under the Islamic jurisprudence the conventions which were not contrary to Holy Quran and Sunnah were recognized from the very inception and they were given binding effect. In this view of the matter, it will be appropriate to refer to the relevant conventions, if any, while construing various Constitutional provisions relating to the Judiciary."
47. The aforesaid was quoted in extenso in the judgment of Asad Ali Shah's case, supra, and applied the facts of the said case.
48. It is apparent from the aforesaid dictum of the Honourable Supreme Court of Pakistan that 'flesh' no matter how 'sinuous' can never be a substitute for the bones and can only occupy the space left vacant thereby. Furthermore, unlike the `flesh of the convention', no amount of disuse and or disobedience can lead to 'atrophy of the dry bones of the law'. In case of a conflict, express provision of law must always prevail, as no amount of convention can repeal or amend any existing law. Thus, the contentions of both the learned counsel cannot be accepted, as the same are not in consonance with the law laid down by the Honourable Supreme Court of Pakistan, referred to above. In the instant case, there are express provisions both the Memorandum of Association as well as the Rules of the Lahore High Court Bar Association relating to the vacancy of the office of the President, and the lis at hand must be decided in accordance therewith, and not in accordance with purported convention or practice of the Bar. It has already been held above that both by virtue of Memorandum of Association and the Rules of the Lahore High Court Bar Association in case of a vacancy of the office of the President of the Bar, the Vice-President does not automatically assume office of the President for the unexpired period of tenure, and such a vacancy must necessarily be filled by the elections.
49. Viewed in the above perspective it appears that on 6-6-2009, an election was held in which the petitioner was elected as the President. Validity and veracity of the said election was disputed by respondent No,3, who invoked the jurisdiction of the Executive Committee of the Punjab Bar Council, which assumed the jurisdiction, and in order to resolve the issue, referred the matter to the electorate for filling up the vacancy by ascertaining the will of the Bar. And pursuant thereto, elections were scheduled for 11-7-2009. Respondent No,3 in the meanwhile assailed the order dated 24-9-2009 before the Pakistan Bar Council, which did not stay the holding of elections, and eventually, election for the office of the President of the Lahore High Court Bar Association was held on 11-7-2009, and the petitioner was elected as the President of the Lahore High Court Bar Association. The Members of the Bar exercised their democratic right and expressed their will; discretion should be exercised in favour of upholding the same, rather than subverting the will of the electorate.
50. A half-hearted attempt was made to contest the jurisdiction of this Court to entertain and adjudicate upon this Constitutional Petition, and reference in this behalf has been made to section 52 of the Legal Practitioners and Bar Councils Act 1973. There is nothing in this provision which would disentitle this Court from exercising its jurisdiction, which even otherwise is creature of the Constitution, and cannot be taken away by sub-constitutional legislation. Furthermore, Constitutional jurisdiction can always be exercised against an order of the Punjab Bar Council and the Pakistan Bar Council, which are statutory bodies. I am fortified in this view by the law laid down in the case reported as PLD 2009 Lahore 572 Muhammad Farooq Warind v. Pakistan Bar Council through Vice-Chairman and 5 others.
51. The upshot of the above discussion is that vacancy of the office of the President of the Lahore High Court Bar Association is to be filled in through an election, and the Vice-President does not assume the said office for the balance period of the tenure. The Executive Committee of the Punjab Bar Council has the jurisdiction to decide the disputes qua the election of the Lahore High Court Bar Association. Therefore, in the facts and circumstances of the case, petitioner is the elected President of Lahore High Court Bar Association. It is settled law that events that occur pendente lite must necessarily be factored into any final judgment of the Court, which may be moulded in accordance therewith. Consequently, the order dated 7-10-2009 being in conflict with law is hereby set aside.
52. However, before parting with judgment, this Court is constrained to observe that both Mrs. Nasira Iqbal and Mr. Munawar Iqbal Gondal Advocates are Honourable Members of the Bar. Both variously enjoy the confidence of the Members of the Bar. Unfortunately, both were placed in an awkward situation on account of the circumstances beyond their control including lack of clarity and harmony in the Rules applicable to the functionings of the Lahore High Court Bar Association.
The Legal Practioners and Bar Councils Act 1973 confers incredible autonomy upon the legal fraternity to pro vide for and to regulate and manage their affairs including the elections of the office bearers. It is hoped that Members of the legal fraternity through their chosen representatives will streamline this aspect of the matter expeditiously, so that, never again, the elected Members of the Bar are placed in the same embarrassing situation as the petitioner and respondent No,3 found themselves. ' in terms articulated ibid.