1. MUHAMMAD ASLAM ARAIN, J.--- This application under Articles 7 and 8, Chapter IV of ."Canons of Professional Conduct and Etiquette" formulated and approved by Pakistan Bar Council is moved, in the following circumstances:-- Mr. Abdur Qadir Halepota, Advocate has filed this criminal appeal on behalf of the convicts Habibur Rehman and Zabit Khan, who alongwith others were convicted by Sessions Judge, West Karachi under section 302-149, P.P.C. And are sentenced to suffer imprisonment for life and fine of Rs.50,000 each. Co-accused have also been convicted, but in appeals before this Court, they are represented by other advocates.
2. On 7-8-1977, Mr. A.Q. Halepota, while as a Judge of this Court, had heard the bail application of accused Rustam Khan and Zabit Khan and had rejected the same. Accused Zabit Khan, on his conviction, has filed the appeal through Mr. A.Q. Halepota, who is no more the Judge and is a practising advocate of this Court.
3. The contention of the learned Advocate for complainant is that Mr. Halepota is barred to defend appellant Zabit Khan (whose bail application Mr. Halepota decided as a Judge of this Court) and co-accused Habibur Rehman, under Articles 7 and 8, Chapter IV "Conduct with regard to Public generally" of the Canons of Professional Conduct and Etiquette, Legal Practitioners and Bar Councils .Act, 1973. We would like to reproduce the said Articles as under:-- "Article (7)-- An Advocate should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.
4. An advocate having one held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or dealt with ' while in such office or employment except in support thereof."
5. "Article (8).-- An advocate should not as a general rule carry on any other profession or business, or be an active partner in or a salaried official or servant in connection with any such profession or business."
6. It is contended that the words "in any matter upon the merits of which he has previously acted in a judicial capacity" in first part of Article (7) and the words "has investigated or dealt with while in such office or employment except in support thereof' in second part of the, Article, were relevant, for the same disqualifying Mr. Halepota to act as an advocate for appellant Zabit Khan, whose bail application was heard and decided by Mr. Halepota had acted upon the merits of appellant Zabit Khan's bail application in his judicial capacity, he cannot after his retirement, accept employment of Zabit Khan, except in support thereof, i.e. To say except in support of the view taken by Mr. Halepota while rejecting bail application.
7. Mr. Muhammad Ali Saeed, the learned Advocate appearing for Mr. A.Q. Halepota defended the latter's right to represent Zabit Khan and Habibur Rehman in this appeal. He has referred us to clause (p) of section 55, Chapter VII-A to Legal Practitioners and Bar Councils Act, which reads as under:-- "55. Power of Pakistan Bar Council to make rules. The Pakistan Bar Council may, by notification in the Official Gazette, make rules to provide for:--
(p) the standards of professional conduct and etiquette to be observed by Advocates."
8. The `Canons of Professional Conduct and Etiquette' were thus formulated and approved by Pakistan Bar Council and urged all advocates to conform to these canons in their conduct with regard to the members of profession, their clients, the Court and the public generally. The learned Advocate's contention is that any departure from the canons, or deviation therefrom, would be a matter cognizable by the Bar Council, where a procedure for enquiry and action is provided and this Court, even if it concurs with applicant's view, cannot debar an advocate from representing a litigant upon the merits of whose case such advocate may have previously acted in a judicial capacity.
9. As to the merits of the application, Mr. Muhammad Ali Saeed, the learned Advocate, defending Mr. Halepota, referred us to the order dated 7-8-1988 passed by Mr. Halepota, as a Judge of this Court on the bail application of accused Rustam Khan and Zabit Khan. The appeal was filed by Mr. Halepota for Habibur Rehman and Zabit Khan on 18-12-1990 and appeal for Rustam Khan (whose bail application was dealt with by Mr. Halepota) is filed by another advocate. As for accused Zabit Khan, although Mr. Halepota had riled the appeal on his behalf, he was superseded by Mr. M. Ilyas Khan, Advocate, who filed his power for Zabit Khan, on 3-10-1991, much before the application under consideration is filed by complainant.
10. We have considered the arguments of the learned advocates, perused the order, dated 7-8-1988 passed by Mr. A.Q. Halepota, as a Judge of this Court on the bail application of accused Rustam Khan and Zabit Khan. The bail was sought for the said two accused on the ground of inordinate delay in the trial of the case (not on the ground of statutory delay, as the third proviso to subsection (1) of section 497 of Cr.P.C. Was not added to the subsection and was not available to the accused at the relevant time). Bail application was rejected by Mr. A.Q. Halepota and it was held that prosecution could not be blamed for the delay in trial of the case. Be that as it may, Mr. Halepota is now Advocate for only accused/appellant/convict Habibur Rehman, whose bail application was never heard by him nor upon the merits of whose case, he had previously acted in a judicial capacity. Having been superseded by Mr. M. Ilyas Khan, Advocate, for appellant Zabit Khan, Mr. Halepota is not disqualified to represent appellant Habibur Rehman in this appeal. Even otherwise, this Court cannot hold that Mr. Halepota is barred from representing the appellants, or anyone of them, upon the merits of whose case Mr. Halepota previously may have acted in a judicial capacity. Even otherwise the Bar Council was the competent forum and not this Court in such matters to enforce its decision for upholding the Canons of Professional Conduct and Etiquette. The application before this Court being incompetent and without merit is rejected.
11. N.H.Q./H-318/K