' This writ petition calls in question the order dated 20-5-1982 of the Executive Committee of the Punjab Bar Council, Lahore.
2. The facts relevant for the disposal of the writ petition may be briefly stated. The Punjab Bar Council in the exercise of powers conferred by section 56 of the Legal Practitioners and Bar Councils Act, 1973 (XXXV of 1973) framed Rules for regulating the business of the Bar Association to ensure efficient performance. These Rules are called "Memorandum of Association" which were published in the Punjab Gazette on 9-12-1981. The procedure relating to holding of elections is governed by Articles 45 to 67 of the Memorandum of Association. Article 45 provides that the Annual Elections of the Bar Associations shall be held under the supervision of the Election Board, so as to conclude by 15th of January, each year. All officeholders of the Association mentioned in the Rules shall be elected by the members of the Association who had been declared "eligible voters", by the President in the list published and pasted on the notice board on the 15th of December, each year. The term "Advocate" has been defined in sub-Article (a) of the Rules which means an Advocate whose name is borne on the Rolls of Advocates maintained by the Punjab Bar Council. The term "eligible voters" is defined in Article 5(d) which means an Advocate whose name for the time being appears on the Roll of the Bar Association and has fulfilled the conditions laid down under rule 7.10 of the Punjab Legal Practitioners and Bar Councils Rules, 1974 and not debarred from use of library books or declared as defaulter.
3. The dispute in this petition relates to the election of the Secretary ship of the District Bar Association, Sialkot, held on 14-1-1982. It is an admitted fact that there were only two candidates for the Secretary ship, namely, Abdul Rehman Janjua, petitioner and Malik Ghulam Hussain, respondent No,
4. The President of the District Bar Association in the exercise of his powers conferred under Article 45 published the list of eligible voters and pasted it at the notice board of the Bar Association on 15-12-1981, showing therein the number of eligible voters as 265.
Subsequently, a supplementary list containing the names of 20 eligible voters was pasted on the Notice Board on 7-1-1982. At the conclusion of the Polls and counting of ballot-papers, the Election Board declared the petitioner elected as he secured more votes than his rival candidate.
4. The case of the petitioner is that he secured 121 votes out of the first list whereas respondent No, 4 secured 118 votes. As to the second list published on 7-1-1982, the petitioner secured 13 votes while respondent No, 4 secured 7 votes. The respondent No, 4 being aggrieved with the result of the election filed an election petition on 24-1-1982 (Annexure A) under Article 64 of the Rules, to the Executive Committee of the Punjab Bar Council. The main plea taken in the election petition as is apparent from ground 4 (c) was that 10 persons whose names were removed from the Roll of Association, have been wrongly and illegally shown as "eligible voters" in the list published by the President, Bar Association, Sialkot, on 15-12-1981. The names of these persons are mentioned by respondent No, 4 in Annexure 'C' to the writ petition. The Punjab Bar Council after hearing the parties and examining the evidence produced before it, recorded a finding of fact that the five Advocates mentioned in the first eligible list of voters were not on the Roll of the Advocates maintained by the Punjab Bar Council, and, therefore, were not "eligible voters". The publication of supplementary list of eligible voters being violate of Article 45 and therefore, the votes secured by the candidates against this list was excluded from consideration. It is further observed that the petitioner Advocate failed to produce any documentary evidence to prove that the disputed Advocates whose names were included in the list of eligible voters were in possession of any valid and up-to-date renewed licences. Accordingly, the election of Secretary ship of the District Bar Association, Sialkot, was declared as illegal and a direction was issued to the Board to delete the names of five Advocates from the list dated 15-12-1981 and, thereafter, hand over to the Election Board for holding new election for the office of Secretary within 21 days of the receipt of the orders as contemplated by Article 66 of the Memorandum of Association. This order has been signed singly by the Chairman of the Punjab Bar Council.
5. Learned counsel for the petitioner submits that there was no documentary or oral evidence on record to support the allegation of respondent No, 4 ride Annexure 'A' and Annexure 'C' to the writ petition that the five Advocates were ineligible voters. It is further submitted that respondent No. 1 never entered in the witness-box to support his petition and, therefore, there was no legal evidence on the record on the basis of which the impugned order could be passed.
6. 1 have perused the evidence on record with the assistance of the learned counsel for the parties and have also gone through minutely the impugned order passed by the Executive Committee of the' Tribunal. The learned Tribunal in view of the evidence before it and after going through the record of the entire case has given a finding of fact which is not open to interference in the exercise of writ jurisdiction. The question raised by the learned counsel for the petitioner relates to appreciation of evidence which cannot be undertaken in these proceedings.
7., Learned counsel for the petitioner next contended that respondent No, 3 had no jurisdiction to act as a prosecutor by suo motu making roving enquiry into the files of the Punjab Bar Council in fishing out a case ' for respondent No, 4 as to whether the five members were not eligible voters. He submitted that the appellant/respondent before the Tribunal closed his evidence on 12-4-1982 and, therefore, respondent No, 2 has acted in violation of the principles of natural justice in taking into consideration the documentary evidence from its own files., behind the back of the petitioner and without providing him an opportunity to rebut the same. The argument is untenable. Article 64 provides that on the application of any eligible voter that there is reasonable evidence that elections as whole or election of particular office is void the Executive Committee, Punjab Bar Council, shall enquire into the allegations and decide the issue after giving full opportunity to the parties concerned. The requirement of Article 64 has been substantially complied with by the Executive Committee, inasmuch as, the Executive Committee duly enquired into the allegations leveled in the election petition and decided the issue in controversy after giving full opportunity to the parties concerned. This is apparent from the record of the Executive Committee. Furthermore, even if it is assumed that no opportunity was provided to the petitioner to rebut the evidence on the basis of which the impugned order has been passed, no prejudice has been caused to him as he has not been able to satisfy even before this Cour that the disputed five persons were eligible voters within the meaning of Article 45 of the Memorandum of Association.
8. It is next contended that the Election Tribunal had no jurisdiction to set aside the election result merely on the basis of question of eligibility of voters, in that, in terms of Article 45 of the Rules, it was exclusive duty of the President of the Bar Association to publish the list of the eligible voters and-the-exercise undertaken by the President was not open to interrefence in appeal. The contention is again misconceived. The learne counsel has overlooked the provisions of Article 65(c) which provides that the election as a whole or of an individual member shall be declared void where the election Rules or any instruction or orders issued by the Punja Bar Council have been violated. Since it is proved on record that these five persons were not members of the Bar Association, therefore, they inclusion in the list of voters was clearly violative of the instructions an orders issued by the Punjab Bar Council.
9. Learned counsel for the petitioner lastly submitted that the entire proceedings before the Election Tribunal were coram non judice, in that, in terms of Article 64 of the Rules, the Executive Committee of the Punjab Bar Council as a whole alone was required to hold enquiry into the allegations and decide the issue whether there was reasonable evidence that the election as a whole or of any particular office was void on any of the grounds in Article 65 thereof. In the instant case, the impugned order has been signed singly by the Chairman of the Executive Committee.
The record of the proceedings substantiate the submission of the learned counsel for the petition- c that the entire proceedings were signed singly by the Chairman of the Tribunal. Learned counsel, therefore, submits that since the election petition itself was entertained by the Chairman on 24-1- 1982, the process was issued by him singly and on all the dates of hearing i,e,. 24-1-1982, 10-2-1982, 5-3-1982, 22-3-1982, 12-4-1982, 25-4-1982, 29-4-1982, 6-5-1982, 18-5-1982 and 25-9-1982, the proceedings have been conducted solely by the Chairman and, therefore, the entire proceedings were coram non judice. It is submitted that it is well established that the jurisdiction of a Tribunal is determinable on the commencement of trial and not on its conclusion. In this connection reliance is placed on Settlement and Rehabilitation Commissioner, Hyderabad Division, Karachi and another v. Mannu Khan and 3 others (1). Learned counsel for the petitioner has frankly conceded before me that this question was never raised before the Tribunal either at the time when the petition was entertained or at the time of final arguments. He participated in the proceedings r without any protest and, therefore, on this short ground alone he is estopped to take up this plea in the discretionary constitutional jurisdiction of this Court. Learned counsel for the petitioner, however, submits that this issue pertains to jurisdiction which can be raised at any time irrespective of the fact that whether or not it was raised before the Tribunal. In this connection reliance was placed to the following observations in Chitranjan Cotton Mills Ltd. v. Staff Union (2) :- "Where the. Court is not properly constituted at all, the proceedings must be held coram non judice and, therefore, non-existent in the eye .Of law. There can also be no doubt that in such circumstances it could never be too late to admit and give effect to the plea that the order was a nullity", as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahone v.
Chief Kwame Tawia."
' In Chitranjan Cotton Mills Ltd.'s cam', the question before the Court was whether the Labour Court partially constituted under Act VI of 1965 and consisting of members not selected in accordance with the provisions of section 9 of Act VI of 1965, were saved either by section 44 or section 9(6) of the Act. The Supreme Court held that the adjudication of the case being {{FOOT NOTE}}
(1) 1973 SCM R 62 (2) PLD 1971 SC 197 {{FOOT NOTE}} ' made by a body which was not a Labour Court either under the Act VI of 1965 or under Ordinance LVI, therefore, the proceedings before the Court were coram non judice. In the instant case, however, the impugned order was signed by the Chairman of the Executive Committee of the Punjab Bar Council and it is not a case where a decision was given by a body which was not competently constituted under the Rules. In any event, the other members of the Executive Committee of the Punjab Bar Council namely Ch. Muhammad Nawaz Warraich and Rai Muhammad Hayat Kharal have sworn affidavits (Annexures R/1 and R/2) to the following effect :- "(1) That the deponent is a member of the Punjab Bar Council and also an elected member of the Executive Committee of the Bar Council.
(2) That the election-petition, on respect of the office of the Secretary, District Bar Association, Sialkot, filed by Malik Ghulam Hussain, was entertained by the Executive Committee of which the deponent was a member.
(3) That the deponent was present in the proceedings of the Executive Committee held on 25-4- 1982, 29-4-1982, 18-5-1982 and 20-5-1982, to hear the election petition filed by Malik Ghulam Hussain to challenge the election of Mr. Abdur Rehman Janjua as Secretary of the District Bar Association, Sialkot.
(4) That the deponent was a party to the order dated 20-5-1982, passed by the Executive Committee, and the same was taken in the presence of the deponent and with his approval."
9. Learned counsel for the petitioner has not filed any counter-affidavit. Be that as it may, failure to sign a judgment delivered by all the members of the Executive Committee who heard the case was a material irregularity. Before the judgment becomes legally operative, it must be announced F publicly and signed by all the members who heard the case. I am however, not prepared to exercise my discretionary jurisdiction as the impugned order of the Tribunal was a just and fair order taken in the interest of the Bar to ensure free and impartial election. Furthermore, Chitranjan Cotton Mills Ltd.'s case was distinguishable. It was a certificated appeal under the provisions of the Labour Laws whereas in the present case, the petitioner has invoked the constitutional jurisdiction under Article 9 of the Provisional Constitution Order, 1981. There is ample authority for the proposition of law that a writ even against a void order may be refused, if an applicant is estopped by his conduct to challenge it or if he has been guilty of laches. Reference may be made to S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1). In the instant case, the petitioner admittedly participated in the proceedings and never took any objection as to the constitution of the Tribunal which finally heard and disposed of the election petition. This being so, the petitioner is estopped by his conduct to take up this plea for the first time in writ jurisdiction. Reference may also be made to the dictum laid down by the Supreme Court in Nawab Syed Raunaq All etc. v.
Chief Settlement Commissioner and others (2), that an order in the exercise of Constitutional jurisdiction is discrectionary and Court should not exercise its discretionary jurisdiction where the impugned order even it suffers for want of jurisdiction has not occasioned any injustice to the opposite-party, but rather cures a manifest illegality. Reference may also be made to Magbool Ahmad Magbaol v. The Province of Punjab and 10 others (3). {{FOOT NOTE}}
(1) 1978 SCM R 367 (2) PLD 1973 SC 236 (3).1971 SC IVI R 727 {{FOOT NOTE}} ' In the precedent case, and objection was taken that the West Pakistan Public Service Commission who interviewed one of the candidates for the post of Extra Assistant Directors of Agriculture, could not perform any of its functions unless at least two members of the Commission participated in the meeting of the Commission under rules 3 and 9 of the Rules of Procedure of the West Pakistan Public Service Commission. The Supreme Court repelled the contention and held that the Public Service Commission itself had the final say in the matter whether it is a matter covered by rule 8 or 9 and that it could not be said that the interview of the candidates by a single Member of the Commission was unlawful as the holding of interview by that Member having been authorised under rule 8 ibid. It was further observed that since the petitioner voluntarily appeared before the single Member for interview and made no objection about his competency, he could not be said to be aggrieved so as to be entitled to seek remedy under Article 98 of the 1962 Constitution.
11. Be that as it may, even if it is assumed that the impugned order suffers from any illegality, the same has not occasioned any injustice to the petitioner and for this reason, I am not inclined to exercise my discretionary jurisdiction as well as for the reason that the next elections of the District Bar Association, Sialkot, are scheduled to be held in January, 1983.
' For the reasons stated above, the petition fails and is hereby dismissed with no order as to costs.