Syed Hasan Azhar Rizvi, J.--The above numbered Constitutional petition was heard and dismissed by our short order dated 04.05.2011. Reasons in support thereof, with concise relevant facts, are recorded as under:--
2. The petitioners are the members of the Sindh Bar Council and actively involved in the affairs of the Lawyers Community have invoked the quo warranto jurisdiction of this Court, mainly against the Respondent No. 2 Mr. Salahuddin Khan Gandapur, further seeking direction to Respondent No. 1 Sindh Bar Council for holding fresh elections for the one (1) seat of Sindh Bar Council from District South, Karachi.
3. The petition was presented on 04.2.2010 and on 18.2.2010 notices were issued to the respondents as well as Advocate General Sindh in response whereof, M/s. Munir A. Malik and Mustafa Lakhani, advocates have appeared on behalf of Respondents No. 1 and 2 and filed their comments.
4. On 10.9.2009 the Returning Officer/Chairman of the Sindh Bar Council, issued Notification under Rule 5(1) of the Sindh Legal Practitioners & Bar Councils Rules, 2002 for announcing the complete program for the elections of the Sindh Bar Council for the tenure 1st January 2010 to 31st December, 2014. Accordingly, list of voters were prepared, nominations were received and on 21.11.2009 polling was conducted from 9.00 a.m. to 5.00 a.m. On the same day in the late hours an un-official counting of votes was done by Polling Officers, whereafter on 2.12.2009 final counting of votes was done in the office of Respondent No. 1 and on 12.12.2009 16 persons were declared return candidates from their respective districts as a result of count and a Notification was issued by Respondent No. 1 for publication in the official gazette. On 05.12.2009 Mr. Muhammad Ali Abbasi, Advocate, who was also a sitting member of the Sindh Bar Council expired, consequently in terms of Section 16(b) of Pakistan Legal Practitioners and Bar Councils Act, 1973 (hereinafter referred to as the Act, of 1973), Mr. Ainuddin is to be notified as elected member of the Sindh Bar Council for the remaining tenure, as he secured the highest number of votes next after Mr. Muhammad All Abbasi, Advocate.
5. Mr. Tahmasp Razvi learned counsel for the petitioners contended that final result was announced on 12.12.2009 and Mr. Muhammad Ali Abbasi, return candidate from District South, has expired on 05.12.2009 prior to completion of election process, therefore Section 16(b) of the Act, is not applicable in the case of Respondent No. 2, as the same has applied only once in respect of each vacancy and Mr. Ainuddin, advocate was appointed against the vacant seat of Mr. Muhammad Ali Abbasi for the remaining tenure. He further contended that Vice Chairman Sindh Bar Counsel made representation to the Chairman/Returning officer Sindh Bar Council praying therein that fresh schedule for the re-election of a one (1) vacant seat, of District South Karachi be announced as the vacancy was not created during the term of office but before termination of the election process (copy of representation dated 24,12.2009 is available at Page 141 of the file), which has been ignored and no proper order has been passed on the same. He also contended that Section 28-A of Pakistan Legal Practitioner & Bar Councils Rule, 1976 has not been adhered to, which provides the procedure of filling of casual vacancy, which is reproduced below:-- "28-A. (i) Any member of a Provincial Bar Council present in the meeting may propose, in writing, the name of an Advocate whose name appears in the Divisional Roll frame that District or Districts to which the vacancy relates, who is qualified to be a Member of the Provincial Bar Council under the Provisions of the act and Rules.
(ii)Such proposal shall be supported by documentary proof of the qualifications of a candidate for the membership of Provincial Bar Council as enumerated in Section 5A of the Act, and shall also be accompanied by a declaration from such candidate that he does not suffer from any of the disqualifications as laid down in the Act, and the Rules.
(iii)If there are more than one proposals for co-option to fill in the vacancy, the decision shall be taken by majority of the members present in the meeting of the Provincial Bar Council.
(iv)After the co-option of a Member against a casual vacancy, the Chairman of the Provincial Bar Council shall cause the name of such co-opted person to be notified in the Official Gazette of the Province as Member of such Provincial Bar Council."
6. Learned counsel lastly argued that the Notification dated 13.1.2010 declaring Mr. Salahuddin Khan Gandapur, Respondent No. 2, as an elected member is void ab initio, liable to be set aside and directed the Respondent No. 1 to hold fresh elections for the one (1) seat of Sindh Bar Council from District South, Karachi. In support of his submissions, learned counsel has placed reliance on the case of Mushtaq Hussain Shah vs. Sindh Bar Council & others (2003 YLR 1520), Syed Jalal Mehmood Shah & another vs. Federation Of Pakistan & another (PLD 1999 SC 395), Shawar Khilji vs. Munawar Iqbal Gondal & 2 others (PLD 2009 Lahore 677), Pakistan International Airline Corporation & others vs. Tanweer-ur-Rehman & others (PLD 2010 SC 676), Salahuddin & 2 others vs. Frontier Sugar Mills & Distillery Ltd. & 10 others (PLD 1975 SC 244) and Ali Irtaza Khan vs. Principal, Lawrence College Ghora Gali Muree & another (1994 MLD 2452).
7. On the other hand, Mr. Mustafa Lakhani learned counsel for the Respondent No. 2 at the very outset objected to the maintainability of this Constitutional petition on the ground that Respondent No. 2 is not holding a public office hence writ of quo warranto does not lie. He argued that, Respondent No. 2 is a duly elected member of the Sindh Bar Council which is a corporate body having perpetual succession and a common seal with power to acquire and hold property as provided under Section 3 of the Act, of 1973. He urged that election process was completed on 02.12.2009 when the official counting of votes were held and the issuance of notification was merely a ministerial act. He also urged that under Article 199(1)(b)(ii) of the Constitution it is the petitioners who have to show that Respondent No. 2 is holding office in clear violation of statutory law and thereafter same can be asked from the respondent under what authority of law he is holding public office. He made reference to the case of Dr. Bushra Ashiq Siddiqui vs. Muhammad Aslam (1989 MLD 1351), wherein it has been held that "in order to make an office as a public office, it should have been created by some law, that it should involve exercise of some portion of sovereign function and that the public should have some interest to ensure that the person holding such office has the right to hold."
8. Learned counsel further argued that neither the petitioners have contested election nor they have aggrieved persons to file writ petition. He argued that if it is assumed that the petitioners have aggrieved persons were required to avail the alternate and adequate remedy provided by statue, before invoking the jurisdiction of this Court under Article 199 of the Constitution. He drew our attention to Section 13(2) of the Act, of 1973, which provides an appeal to the Pakistan Bar Council against an order or decision of a Provincial Bar Council within 30 days of passing of such order or decision.
9. Lastly, Mr. Lakhani contended that no provision to hold fresh or re-election is provided by statue.
He made reference to Section 7 of the Act, of 1973, which provides that Provincial Bar Council election shall be held only when term of Provincial Bar Council expires on or before 13th day of November of that year. He, therefore, prayed that petition is not maintainable and liable to be dismissed. In support of his submissions, learned counsel has placed reliance on the cases of Dr. Y.
S. Rajasehara Reddy & others vs. Sri Nara Chandrababu Naidu & others (AIR 2000 A.P. 142) and Shawar Khilji vs. Munawar Iqbal Gondal & 2 others (PLD 2009 Lahore 677).
10.Mr. Raja Qasit Nawaz, learned counsel for the Intervenor urged that entire process of election of Provincial Bar Council is to be completed before 13th November. He supported the arguments of Mr. Lakhani learned counsel for the Respondent No. 2. He also drew our attention to Section 4 of 1973 Act, which reads as under:-- "4. Term of Bar Council.--The term of every Bar Council shall be five years beginning on the first day of January following the general elections to the Provincial Bar Councils; and at the end of each terms the members of the Bar Council shall cease to hold office: Provided that the next elections of the Provincial Bar Councils shall be held between 1st October, 2009 and the 31st of December, 2009 and the term of the next Provincial Bar Council shall commence from the 1st January, 2010".
11.Mr. Sarwar Khan learned Additional Advocate General, Sindh while supporting the order/notification dated 13.1.2010 issued by the Chairman/Returning Officer has made reference to Section 5 of the Act, which relates to composition of Provincial Bar Councils. He submitted that District South has six (06) seats, which have been filled by following due procedure. He also submitted that scheme of Bar Council Act, is for five (05) years and once election is held and any seat remains vacant, which shall be filled by the person who secured the next highest number of votes in the same election. He submitted that the notification dated 13.1.2010 was issued in accordance with the provisions of Section 16(b), Chapter V of the Legal Practitioner & Bar Councils Act, 1973, which deals with filing up of vacancy. It will be advantageous to reproduce Section 16(b) of the Act, which reads 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."
12.We have given due consideration to the arguments advanced by the learned counsel for the parties, perused the available material and the case law cited at the bar.
13.Admittedly the learned Returning Officer/Chairman issued Notification announcing the complete program for the election of the Sindh Bar Council for the tenure 1st January, 2010 to 31st December, 2014 on 04.9.2010, which was published in official gazette on 10th September, 2009.
According to the election schedule polling was conducted on 21.11.2009 from 9.00 a.m. to 5.00 p.m.
On the same day in the late hours an un-official counting of votes was done by Polling Officers and on 02.12.2009 the Returning Office after officially counting the votes in presence of the candidates or their nominees declared the official results, in the which the name of Mr. Muhammad Ali Abbasi, advocate was placed at Serial No. 1, as he has secured the highest votes amongst the contesting candidates from District South. Mr. Muhammad All Abbasi, advocate expired on 05.12.2009.
Notification was issued by the Respondent No. 1 for publication in the official gazette regarding election of the 16 persons, who were declared elected from their respective Districts as a result of official count on 12.12.2009. The said results have not been challenged before any Tribunal or Court.
14. The controversy starts when the Respondent No. 1 issued notification dated 13.1.2010 notifying Respondent No. 2 Mr. Salahuddin Khan Gandapur as Member Sindh Bar Council on the seat vacant, due to death of Mr. Muhammad Ali Abbasi, advocate. The name of Respondent No. 2 appeared at Serial No. 7 in the statement of votes issued by Respondent No. 1 (available at Page 125 of the file), as such found eligible to fill the vacant seat under Section 16 (b) of 1973 Act. It may be noted that in the case of Mushtaq Hussain Shah (Supra), the Division Bench of this Court, was observed that any vacancy falling vacant on any account is to be filled by a person who had secured the next highest number of votes. In the said case the petitioner challenged the notification issued by Chairman/Returning Officer, but in the case in purely a discretionary relief as quo warranto is not issued as a matter of course and the Court can and will enquire into the conduct and motive of the relator. So also there is no specific rule for the exercise of discretion by the Court in granting or refusing an information in the nature of quo warranto. We find further support form the cases of Dr. Y. S. Rajasekata Reddy & Others and Dr. Bushra Ashiq Siddiqui (supra), wherein the Courts have summarized the scope for issuance of writ of quo-warranto. The learned counsel for the petitioners has not been able to point out any provisions of law which has been violated in issuing Notification dated 13.1.2010. The Rule 28-A of the Rules of 1976 referred by the learned counsel for the petitioners is not applicable as the said rule is applicable where no member qualified highest to next. The case law cited by the learned counsel for the petitioners are distinguishable and not applicable to the present case. We, therefore, find that it is not a fit case for issuance of writ of quo warranto and interfere in the smooth functions of the Bar Councils.
15. In view of the above order, applications listed at Serial No. 1 and 3 are also dismissed having become infructuous.
16.The petition has been dismissed through a short order dated 4.5.2011.