' This judgment shall dispose of the following three Constitutional Petitions involving common questions of law and facts :- "(1) Writ Petition No, 4962 of 1983 Muhammad Zafar Khan v. The Returning Officer (Advocate- General, Punjab) Bar Council, Lahore.
(2) Writ Petition No, 4963 of 1983 Arif Iqbal Hussain Bhatti v. Sh. Riaz Ahmad, Advocate-General, Punjab/Returning Officer, Bar Council, Punjab, Lahore (2) Superintendent District Jail, Jhelum.
(3) Writ Petition No, 4964 of 1983 Muhammad Asghar Khadim v. Sh. Riaz Ahmad, Advocate-General, Punjab/Returning Officer, Bar Council, Punjab, Lahore (2) Superintendent, District Jail, Jhelum."
' Writ Petitions Nos. 4963 of 1983 and 4964 of 1983 aforementioned already stand admitted to regular hearing. In these two Constitutional Petitions notice was issued to the learned Advocate- General in regard to the prayer for suspension of the impugned order, for today. Writ Petition No, 4962 of 1983 has, however, not so far been admitted to regular hearing. Report and parawise comments from the respondent (Advocate-General, Punjab) were called for today. The learned Assistant Advocate-General who has put in appearance for the respondent as also the learned counsel for the petitioner have submitted that the points involved in this Constitutional Petition are similar to those involved in the aforementioned two writ petitions. In the circumstances, this writ petition is hereby admitted to regular hearing and notice has been received by the learned Assistant Advocate-General.
2. As already observed, these petitions were fixed for today only for the disposal of the prayer for suspension of the impugned orders. Learned counsel for both the parties, after addressing the Court, submitted that since full dress arguments on the merits of these Constitutional petitions have been heard, therefore, the Constitutional Petitions be disposed of instead of merely deciding the prayer for temporary relief. The submission being genuine, it is proposed to dispose of the aforementioned three Constitutional Petitions through this judgment.
3. The petitioners in all these Constitutional Petitions are practising Advocates who have been duly issued identity cards to vouchsafe their eligibility to contest the ensuing elections of the Punjab Bar Council. These three petitioners are, however, under detention in different jails of the Province. Mr. Muhammad Zafar Khan, the petitioner in Writ Petition No, 4962 of 1983 is currently detained in Central Jail, Sahiwal while Messrs Arif Iqbal Hussain Bhatti and Muhammad Asghar Khadim petitioners in Writ Petitions Nos. 4963 of 1983 and 4964 of 1983, respectively are detained in District Jail, Jhelum.
4. Mr. Muhammad Amin, an Advocate practising generally at Faisalabad who is on the divisional roll of Advocates and holds identity card in that behalf proposed the name of Muhammad Zafar Khan petitioner in Writ Petition No, 4962 of 1983 as a candidate for the election as a member of the Punjab Bar Council from Faisalabad district. The nomination paper containing the proposal and acceptance by the petitioner was received before the prescribed date in the office of the Returning Officer/Advocate-General, Punjab. Similarly, Mr. Masood-ur-Rehman Mirza whose name is carried on the divisional roll of Advocates for Lahore and Mr. Khalid Mahmood Chaudhary Advocate whose name too is carried on the divisional roll of the advocates for Lahore proposed the names of Mr. Arif Iqbal Hussain Bhatti and Mr. Muhammad Asghar Khadim Advocates, petitioners in Writ Petitions Nos. 4963 of 1983 and 4964 of 1983, respectively. Needless to say that Messrs Masood-ur-Rehman Mirza and Khalid Mahmood Chaudhary are also holders of identity cards and the nomination papers proposed by the aforementioned gentlemen contained the acceptance by Messrs Arif Iqbal Hussain Bhatti and Muhammad Asghar Khadim, the nominees. These nomination papers were also received before the date fixed for the purpose. 14th November, 1983 was fixed as the day for scrutiny. After scrutiny on the said day, the nomination papers of all the three petitioners were rejected by the Returning Officer. In case of Mr. Muhammad Zafar Khan petitioner in Writ Petition No, 4962 of 1983, the nomination paper has been rejected on the ground that signature on the nomination paper has not been verified by the jail authorities and that it was not known whether the candidate had signed it or not. In the case of Mr. Arif Iqbal Hussain Bhatti, petitioner in Writ Petition No, 4963 of 1983, the order of rejection of nomination paper reads : "Signatures on the nomination paper and at the bottom of affidavit are not similar. The candidate is in jail. The nomination paper ought to have been verified by the Concerned jail authorities. In this view of the matter, I would reject this nomination paper.' In the case of Mr. Muhammad Asghar Khadim, petitioner in Writ Petition No, 4964 of 1983, the impugned order of rejection of nomination paper is in the following terms. 'The nomination paper and the acceptance of the candidate to serve as a member is doubtful. The signatures of the candidate have not been verified by the Jail authorities. I would, therefore, reject this nomination paper."
5. It is noteworthy that in case of Messrs Arif Iqbal Hussain Bhatti and Muhammad Asghar Khadim, the petitioners (in Writ Petitions Nos. 4963 and 4964 of 1983) have annexed with their respective writ petitions the endorsements made by the Deputy Superintendent, District Jail, Jhelum on their respective permission slips which bear certificate to the effect that the detenus had signed the nomination papers in the presence of the Deputy Superintendent in the jail in view of the special permission granted by the Home Secretary. In case of Mr. Muhammad Zafar Khan, petitioner in Writ Petition No, 4 962 of 1983, it is submitted that his four relatives including his son were permitted vide Annexure 'A' to his writ petition to see the petitioner in Central Jail, Sahiwal. On the said occasion, Mr. Muhammad Zafar Khan gave the nomination paper duly signed by him to his son. It is also on record that Mr. Muhammad Zafar Khan sent another nomination paper duly signed by his proposer and by him through Superintendent Jail concerned to the Home Secretary, Government of Punjab, which was received in the office of the Home Secretary, Punjab on 9th November, 1983 i,e, before the last date fixed for receiving the nomination papers. The office of the Home Secretary, however, delivered the said nomination paper in the office of the Advocate-General, Punjab/Returning Officer on 18th/19th November, 1983 i,e, after the scrutiny. The provisions relating to filing of the nomination paper and scrutiny of the nomination papers are contained in rules 6 and 8 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976. Rules 6 and 8 ibid are reproduced in extenso hereunder :- "Rule 6.-(1) At any time before 2 p.m. On a date specified by the Returning Officer any Advocate practising generally in a district and entered on the (divisional) roll (who is qualified as voter) may by a letter addressed to the Returning Officer propose another such Advocate (qualified as a candidate) for election as a Member of the Provincial Bar Council (from that district) by delivering at the office of the Returning Officer nomination papers signed by him and accompanied by a statement by the Advocate whose name is proposed that he is willing to serve as Member if elected. A proposal shall relate only to one candidate and shall be invalid if it relates to more than one. The Returning Officer or any other person specifically authorized by him in this behalf shall note on each proposal as soon as it is received, its number as well as the time and the date on which it is received : (2) The proposal shall contain number of the identity card issued by the Provincial Bar Council to such candidate and his proposer accompanied by a declaration from the candidate that he does not suffer from any of disqualifications prescribed in the Act and the Rules : ' Provided that no voter shall sign more proposals than the number of the members to be elected to the Provincial Bar Council. In case he does so, his proposals received earlier in time upto the number of the members to be elected, shall only be valid.
' Rule 8.-On the day fixed for scrutiny the Returning Officer shall after hearing such objections which will be made to any proposal by auy candidate or a voter and after making such summary enquiry as he thinks fit, accept or reject the proposal."
6. So far as the requirements of rule 6 (supra) are concerned, they are fully met in case of nomination papers submitted on behalf of the petitioners in the under consideration three Constitutional Petitions. There is no requirement of rule 6 to the effect that if the nominee/candidate is in jail hi signatures on the nomination paper must be verified by the Superintendent of the jail concerned. Similarly, there is no requirement of rule 6 that the declaration contemplated by rule 6(2) should be in the form of affidavit attested by an Oath Commissioner.
7. It has been urged by the learned Assistant Advocate-General that the jail rules require that any document signed by a prisoner must be verified by the Superintendent of the jail concerned. This contention appears to be just a loud statement. A letter addressed by a prisoner to his wife and children is certainly not required to be signed by the jail authorities. Rule 91 of the Pakistan Prisons Rules provides that if a relative or agent of the convict prisoner undertakes to submit an appeal on his behalf, the arrangement must be authorized by a power of attorney to which the convict prisoner shall affix his signature or thumb-impression. This shall he attested by the Superintendent, or in his absence by the Deputy Superintendent. Rule 548 (ibid) is, however, to the effect that no prisoner shall be allowed to have an interview or to write a letter except with the permission of the Superintendent, which shall be recorded in writing. In the circumstances of the under consideration cases it is not disputed that the relatives of the petitioners were permitted by the Home Department to have interview with the petitioners when they obtained their signatures on the nomination papers. In cases of Messrs Arif Iqbal Hussain Bhatti and Muhammad Asghar Khadim, it has been verified in writing by the jail authorities that the nomination papers were signed in the presence of such authorities by the aforementioned petitioners. In case of Mr. Muhammad Zafar Khan, one nomination paper was in fact sent by the Superintendent Jail himself to the Home Department for onward transmission to the Returning Officer. In these circumstances, even the requirements of rule 548 of Pakistan Prison Rules were fully met.
8. As a matter of fact in case of an Advocate who is not in detention, there is no requirement that his signatures on his nomination paper attested by any notary public or oath commissioner.
Similarly, in case of an Advocate who is in detention, no such embargo can be placed in the absence of any statutory requirement to the contrary.
9. Rule 8 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, is simply to the effect that on the day fixed for scrutiny, the Returning Officer would hear the objections which would be made to any proposal by any candidate or a voter and thereafter he would make a summary enquiry as he thinks fit in regard to such objections and then would accept or reject the proposal. In the present cases, it is a common ground between the parties that no objection was raised by any rival candidate or any voter as to the validity of the nomination papers of the petitioners. The proposers viz. Masood-ur-Rebman Mirza Advocate and Chaudhary Khalid Mahmood Advocate, respectively have sworn affidavits to the effect that they attended the scrutiny on 14th November, 1983 conducted by the Returning Officer (Advocate-General Punjab) and that none of the contesting candidates raised any objection to the nomination papers of the aforementioned two petitioners. They have further testified that even the Returning Officer himself did not raise any objection at the time of scrutiny. He rejected the nomination papers late in the evening in the absence of the proposers. It is thus evident that at the time of scrutiny, no objection was raised to the validity of nomination papers of the petitioners by any rival candidate or a voter and no objection was even taken in this behalf by the Returning Officer himself. He subsequently recorded the impugned orders in the absence of the proposers without affording any opportunity to them to explain to him and to satisfy him that the signatures of the candidates on the nomination papers were genuine.
10. The learned Assistant Advocate-General also argued that the Returning Officer could competently reject a nomination paper suo motu even if no objection was raised by any rival candidate or a voter as contemplated by rule 8 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976. To amplify his contention, he urged that if the Returning Officer had no suo motu power to reject a nomination paper then a person who may not be a lawyer at all could avail the chance of contesting Bar Councils Election if his nomination was not objected to by a rival candidate or a voter. This situation cannot arise at all because under rule 6 of Pakistan Legal Practitioners and Bar Councils Rules, 1976, there are certain requirements such as identity card issued by the Provincial Bar Council to Advocates entered on the divisional roll. A person who is not an Advocate cannot be in possession of such an identity card as he cannot meet the requirement of rule 6 (ibid). In the under consideration cases, as already observed, requirement of rule 6 (supra) were fully met.
11. In the light of what has been said above, it is concluded that the Returning Officer (Advocate- General, Punjab) rejected the nomination papers of the petitioners wrongfully and illegally in violation of the provisions of. Rule 8 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976.
All the three writ petitions are, therefore, allowed and the orders impugned through these petitions are declared to be without lawful authority and of no legal effect. The Returning Officer (Advocate- General, Punjab) is directed to include the names of the petitioners in the list of candidates contesting for the forthcoming election of the Punjab Bar Council. There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.