' KHILJI ARIF HUSSAIN, J.---This petition has been filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan 1973, ' for leave to appeal against the order dated 27-5-2011 passed by the High Court of Sindh, at Karachi whereby C.P. No,D-306 of 2010 filed by the petitioners was dismissed.
2.Facts giving rise to instant petition for leave to appeal are that the petitioners are enrolled Advocates of Sindh Bar Council; that the petitioners participated in the elections of Sindh Bar Council which was held in the months of November-December, 2009; that the respondent No,1 Sindh Bar Council is a statutory body formed pursuant to Legal Practitioners and Bar Councils Act, 1973 (hereinafter referred to as "the Act") for the purposes of inter alia enrollment and admission of Advocates; to determine the cases of misconduct, to safeguard the rights, privileges and interest of Advocates; and to conduct elections of its members. On 10th September 2009, the Returning Officer/Chairman of Sindh Bar Council issued a Notification pursuant to Rule 5(1) of the Pakistan Legal Practitioners and Bar Councils, Rules 1976 announcing the complete program for the elections of Sindh Bar Council for the tenure from 1st January, 2010 to 31st December, 2014. The said Notification is reproduced herein below:-- Date Details of Program Relevant Section/Rule 1-10-2009 (Thursday)Publication of List of Voters along with number of contesting seatsSection 5(2), Rule 4(1)
17-10-2009 (Saturday)List of Voters with their place of voting at the pollRule 13 21-10-2009 (Wednesday)Receipt of Nominations proposals papers of CandidateRules 5(1)(a) and 6 24-10-2009 (Saturday)9-00 a.m. to 12-30 p.m. (1 hour Lunch Prayer break) 2-00 p.m. to 4-00 p.m.--- 26-10-2009 (Monday)Display of list of contesting candidates 2-00 p.m. to 4-00 p.m.Rule 7(1)
31-10-2009 (Saturday)Scrutiny of Nominations proposals at 2-00 p.m.Rule 5(1)(b)
2-11-2009 (Monday)Display of list of Contesting candidates Rule 5(1)(e)
5-11-2009 (Thursday)Withdrawal of Nominations/proposals before 2-00 p.m.Rule 5(1)(d) and 9 7-11-2009 (Saturday)Display of Final list of un-opposed candidates,if anyRule 10(1)
7-11-2009 (Saturday)Display of final list of contesting candidatesRule 5(1)(e)
21-11-2009 (Saturday)DATE OF POLLING From 9-00 a.m. to 1.00 p.m. and from 2-00 p.m. to 5-00 p.m.Rule 5(1)(1)
21-11-2009 (Saturday)Counting of votes by polling Officers after Conclusion of PollingRule 25(1)
2-12-2009 (Wednesday)Counting of votes by the Returning Officers At 10-00 a.m. in the Bar Council Office, Sindh High Court (Annexe)
Building Karachi.Rule 25(2)
12-12-2009 (Saturday)Declaration of final Results of elected canididatesRule 26 24-12-2009 (Thursday)Filling of objections against elected candidates, if anyRule 5(1)(h)
3. After receiving the nomination papers as per schedule and after scrutinizing the same, final list of contesting candidates was displayed on 17-11-2009 and the polling was conducted on 21-11-2009.
On the same day unofficial counting of votes was done by Polling Officer, where after, on 2-12-2009 in terms of Rule 25(2) of Sindh Legal Practitioners Bar Council Rule 2002, official counting of votes was done by Polling Officer in the office of respondent No l. Mr. Muhammad Ali Abbasi, who was the sitting President of Karachi Bar Association and also sitting Member of Sindh Bar Council, also contested the election for Membership of Sindh Bar Council from District South, Karachi for the tenure which was commenced from 1st January, 2005 to 31st December, 2014. On 2-12-2009 final counting was done and as a result whereof, Mr. Muhammad Ali Abbasi who has received highest votes from District South, Karachi was declared returned candidate along with other. Mr. Muhammad Ali Abbasi had expired on 5-12-2009. On 13-1-2010 the Chairman Sindh Bar Council ordered that the vacant seat to be filled in as per section 16(2) of the Act by the next member who has got highest votes in the said election.
4. The petitioners aggrieved by the said order, filed Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 before the High Court of Sindh, at Karachi with the prayer that a writ of quo warrant may be issued against respondent No,2 namely Salahuddin Khan Gandapur, as he is holding office of Member, Sindh Bar Council without any lawful authority; that in the circumstances of the case the provision of section 16(b) of the Act is not applicable, therefore, the Notification dated 13-1-2010 may be declared to be illegal, without lawful authority, void ab initio and of no legal effect and the respondent No,1 may be directed to hold fresh elections for one seat of Sindh Bar Council from District South, Karachi. The said petition was dismissed by a learned Division Bench of the High Court vide the impugned order. Hence, this petition.
5. Mr. Rasheed A. Razvi, learned Senior Advocate Supreme Court appearing for the petitioners argued that section 16(b) of the Legal Practitioners and Bar Council, Act 1973 is not attracted to the present case as Muhammad Ali Abbasi had expired before the commencement of the tenure for which the election was conducted by the Bar Council and in these circumstances, the respondent No,1 ought to have held fresh elections for the seat which fell vacant due to the sad demise of Muhammad Ali Abbasi.
6. On the other hand, Ms. Asma Jehangir, learned Advocate Supreme Court representing the respondent No,2 while supporting the impugned order vehemently argued that there is no concept of re-election within the Scheme of Bar Councils Act, that if for any reason one of the Members of Bar Council disabled to perform his duty as a Member, then the vacant vacancy shall be filled up by the next person, who received highest number of votes in the same elections and from the same district. It is further contended by the learned counsel that if the petitioners were aggrieved, an alternate remedy by way of appeal was available to them for redressed of their grievance and that the learned High Court in these circumstances rightly declined to grant discretionary relief.
7. We have taken into consideration arguments advanced by the learned counsel for the parties and perused the available record. From perusal of the record, it appears that Chairman of the respondent No,1 issued a Notification under Rule 5(1) of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 on 10th September, 2009 setting out the elections program of Bar Councils for the tenure commencing from 1st January 2010 to 31st December, 2014. The poll in terms of the Notification, were held on 21-1-2009 and at the end of the day unofficial counting of votes were carried out by the Polling Officer. Thereafter, official counting of votes by the Returning Officer was done on 2-12-2009, as a result whereof, Muhammad Ali Abbasi received the highest votes in the group of District South Karachi and by a Notification dated 12-12-2009, he was declared duly elected Member of Sindh Bar Council the Province of Sindh. The said Notification was duly published in the official gazette of Sindh Government on 17-12-2009. On representation made by Vice Chairman, Sindh Bar council for re-election on the vacant seat of District South Karachi, the Chairman called' the Vice Chairman to discuss personally under what law the order of reelection can be passed as there is no provision of re-election in the Act. On 13-1-2010, Secretary Sindh Bar Council, in response to a query made by the Chairman drew his attention to section 16(b) of the Act and the Chairman passed an order to notify the next member who had received the highest votes. It further appears that after Muhammad Ali Abbasi, (Late), Salahuddin Khan Gandapur was the next person who received the highest votes and was elected as Member of Sindh Bar Council for the tenure commencing from 1st January, 2010 to 31st December, 2014 in terms of section 16(b) of the Act.
8. For the sake of convenience, we would like to reproduce the sections 4 and 16 of the Act which read 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 term 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 the 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)."
16. Filling of casual vacancies.---If the seat of a member of a Bar Council becomes vacant during the term of office of the Council.--
(a) In case of the Pakistan Bar council, the vacancy shall be filled by the person who received in the last elections from the same province the highest number of single transferable votes next after the member, the vacancy in whose seat is to be filled or if there be no such person then the vacancy shall be filled by a person elected in accordance with the provisions of section 11;
(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 districts or, as the case may be, group of districts, who is co-opted by the Provincial Bar Council.".
9. Though Section 16 of the Act provides that the vacant seat will be filled during the term of the Council, however, no specific' provision has been pointed out by the learned counsel for the parties; that in the circumstances of the case, the Bar Council ought to have held reelection. We refrain ourselves from expressing any opinion on the issue involved in the present petition, as we are of the opinion that in such like situation the petitioners and the respondents who are practicing Advocates ought to have resolved their disputes before their own forums in terms of Legal Practitioners and Bar Councils Act, 1973, which provides a domestic alternate remedy to the aggrieved persons for redressed of their grievances.
10. This being the position, the listed petition is dismissed with the observation that if the petitioners file an appeal, the same shall be decided expeditiously without being influenced from any observations made hereinabove or in the impugned order.