GUL ZARIN KIANI, J.- This is a Misc, petition for revising of an order of learned Addl. Sessions Judge, Rawalpindi, dated 2-9-1991, by which he denied permission to the petitioner to represent an accused in the Hudood case on the basis of a special power of attorney unauthenticated by a Notary Public.
2. Muhammad Hafiz is an accused in a Hudood case and is lodged in Central Jail Adiala at Rawalpindi. On 3-8-1991, accused gave a special power of attorney to the petitioner to act on his behalf and perform certain functions specified in the power of attorney. Special power of attorney was written on a stamp-paper. It was attested by the Jail Authorities. However, it did not bear attestation by a Notary Public. On the Strength of above special power of attorney, petitioner applied for bail to the accused. Bail petition was entrusted for hearing to a learned Addl:Sessions Judge of Rawalpindi. On 2-9-1991, the learned Addl. Sessions Judge dismissed the bail petition. He found that since the special power of attorney in favour of the petitioner was not duly attested by a Notary Public in accordance with , law, therefore, he had no locus standi to move and pursue the bail petition on-behalf of the accused. Refusal on the part of the learned Addl. Sessions Judge to entertain and decide the bail application of the accused presented through a person holding a special power of attorney has brought him to this Court with a grievance that the learned Judge below did not apply the law correctly to decide the matter placed before him.
3. Upon hearing the petitioner in person and the learned AA.G. At length, it is sufficiently clear to me that the impugned order did not proceed on correct legal premises. As said above, special power of attorney though written on a stamp paper but was attested and authenticated by the Jail Authorities. Short question is whether in addition to the authentication by Jail Authorities, its attestation by a Notary Public was also required. Upon examination of the relevant provisions of law and decided cases, I think that it was not an essential requirement either for the petitioner or for the accused to observe. Interpreting term "pleader" in section 4(l)(r), Criminal Procedure Code, a Division Bench of the Bombay High Court in Emperor Vs. Jaffar Kasim Mooso (AIR 1934 Bombay 212) ruled that the words "any other person" occurring in the definition of "pleader" are not restricted in their meaning and are not limited to a person authorized by law to appear in a particular Court.
Hence a "constituted attorney" can appear for the accused. Similar views were expressed in Emperor Vs. Chotekhan and others (AIR 1930 Nagpur 150(2)), Indar Dass Vs. State (AIR (38) 1951 Himachal Pradesh 31), Sarsibala Dawan and others Vs. The State (AIR 1962 Patna 244), L4.S. Swami Vs. Kubendran (AIR 1967 Madras 276) and finally in Harishankar Rastogi Vs. Girdhari Sharma and another (AIR 1978 Supreme Court 1019). In the last case from the Supreme Court of India, the point for consideration was, whether a person, who is not an advocate by profession can be permitted to plead on behalf of the petitioner. The question was answered in the affirmative and the Court observed: - "Having regard to this conspectus of consideration, I hold that a private person, who is not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Courts to grant or with-hold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission."
Earlier to this on para-3 of the judgment, the Supreme Court observed:- "The petitioner has put in a written representation citing a number of decisions to justify his stand that private persons may be permitted by the Court to appear, act and plead. He has cited a number of decisions in support of his position. Apparently, some legal hand has lent him help. I thought it fit to give notice to the Supreme Court Bar Association and Sri Nain has represented the Bar Association before me and assisted me with his brief but telling submissions. His experience as a senior member of the Bar and as a one-time Judge of a High Court is an additional factor of assistance, Sri Nain persuasively stated that while a private person, who is not an advocate by profession cannot, as a right, walk in and claim to argue before this Court, he may, in a particular case, be specially permitted by the Court in exercise of its wise discretion. The wisdom of the discretion in his submission, must be guided by a plurality of considerations. If the man who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the Court may receive counterproductive service from him. Justice may fail if a knave were to represent a party.
Judges may suffer if quarrelsome, ill-informed or blackguardly or block headly private representatives flying arguments at the Court. Likewise the party himself may suffer if his private representative deceives him or destroys his case by mendacious or meaningless submissions and with no responsibility or respect for the Court. Other situations, settings and disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice. Indeed, the Bar is an extension of the system of justice; an advocate is an officer of Court He is master of an expertise but more than that accountable to the Court and governed by a High ethic. The success of the judicial process often depends on the services of the legal profession." -
4. It is obvious from the above that though the special power of attorney was attested by Jail Authorities and empowered the petitioner to file a bail petition on behalf of the accused, yet by itself it did not authorize the holder of power of attorney to address and argue the bail petition. In view of the prevailing law, he could do so only with the permission of the Court and in granting or refusing the permission to the petitioner, the Court was required to take into consideration variety of actors as have been noticed in the judgments stated above. Neither the permission is to be granted in routine nor its refusal is to take place without taking into consideration all the relevant circumstances. It may also be observed that the learned A A.G. Also did not support the view taken by the learned Addl. Sessions Judge. His view was that a power of attorney executed by an under- trial prisoner lodged in Jail authenticated by Jail authorities was a valid document, which did not require further attestation by a Notary Public and that the accused could authorize a private person to represent him in proceeding before a Court with its permission.
5. Since the Court below did not approach the case from a correct legal perspective and its order was defective, it is set aside and the case is remanded to learned Judge below for deciding of it afresh in accordance with law and the observations made above. Petitioner shall appear in the Court below on 21-9- 1991.