' This is an application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, hereinafter referred to as the Rules, for recalling our order, dated 25-7-1991 passed by us in proceedings arising out of the show-cause notice, dated 2-3-1991 issued to the petitioner Mr. Yusuf All Khan under Rule 2 read with Rule 30 of Order IV of the Rules. The operative portion of the above order reads as follows:- "5. We would, therefore, order that Mr. Yusuf All Khan be removed from the practice of the Supreme Court under Rule 30. However, we may observe that it will be open to Mr. Yusuf All Khan to apply for recalling of this Order upon the expiry of three years provided his conduct remains satisfactory.
' Further action, if any, under Rule 2 may be taken by the Hon'ble Chief Justice."
2. The petitioner has filed the above miscellaneous petition for recalling of the above order on the grounds that he had not received the notice of hearing for 25-7-1991 and also on merits.
3. It is not necessary to restate the facts of the case as the same have been sufficiently stated in our above order, dated 25-7-1991. However, it will suffice to observe that we were satisfied that the petitioner had the notice of the above date of hearing, inasmuch as we sent for Mr. Talib Hussain, Assistant Registrar of this Court at Lahore, who had stated before us that he had informed the petitioner about the above date of hearing: He also made an endorsement to that effect on the notice which was issued to the petitioner and which was returned by the peon of the Court without serving the same. We had no reason to disbelieve Mr. Talib Hussain. In this view of the matter, we could have declined to examine the case on merits. However, since the petitioner was not heard, we have examined his contentions again in conjunction with the case-law relied upon by him. His contentions were as follows:-
(i) That the Supreme Court under Article 191 of the Constitution of Islamic Republic of Pakistan, hereinafter referred to as the Constitution, could not have framed Rules 2 and 30 of the Order IV of the Rules and, therefore, the same are incompetently framed;
(ii) That the above Rules 2 and 30 of the Rules are ultra vires the provisions of the Bar Councils Act, 1973, hereinafter referred to as the Act;
(iii) That even if it is to be held that the Rules were competently framed and are intra vires the provisions of the Act, the same could not have been applied retrospectively to the petitioner as the same were framed on 20-11-1980, whereas the petitioner signed the Roll of Advocates of this Court on 12-6-1975; and
(iv) That, in any case, on merits the action taken against the petitioner was not warranted, as the letter dated 20-12-1990 was addressed by the petitioner to Mr. Justice Saad Saood Jan as his relation and not as a Judge.
4. It may be convenient to take up the above first and second contentions of Mr. Yusuf All Khan as they are interlinked. In this regard, it may be pertinent to reproduce Article 191 of the Constitution and sections 23 and 28 of the Act, which read as follows:- ' Section 191 of the Constitution.--- "191.-- Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court."
' Section 23 of the Act.-- "23: -Preparation ' The Pakistan Bar Council shall prepare and maintain a roll of advocates of the Supreme Court in which shall be entered the names of--
(a) all persons who were, as advocates, senior advocates or advocates on record, entitled to practise in the Supreme Court immediately before the commencement of the Bar Councils and Legal Practitioners (Amendment) Act, 1987, and
(b) all persons who are admitted as advocates of the Supreme Court under the provisions of this Act: ' Provided that no person shall call himself or hold himself out as an Advocate of the Supreme Court until he has signed the roll of advocates kept under the Rules of the Supreme Court, and the right of a person to appear, act and plead before that Court shall be subject to the said Rules."
' Section 28 of the Act.
"28. Persons Qualified for admission as advocates of the Supreme Court. -- Subject to the provisions of this Act and the rules made thereunder, a person shall be qualified to be admitted as an advocate of the Supreme Court if he fulfils such conditions as may be laid down in this behalf from time to time by the Rules of the Supreme Court and has paid to the Pakistan Bar Council such enrolment fee as may be prescribed by that Council."
5. A perusal of the above Article 191 of the Constitution indicates that subject to the Constitution and law, the Supreme Court has been empowered to make rules regulating the practice and procedure of the Court. It may further be noticed that above quoted section 23 of the Act, empowers the Pakistan Bar Council to prepare and maintain a roll of advocates of the Supreme Court containing the particulars mentioned in clauses (a) and (b) of it. However, proviso to the above section makes it dear that no person shall call himself or hold out as an Advocate of the Supreme Court until he has signed the roll of advocates kept under the Rules of the Supreme Court and the right of a person to appear, act and plead before that Court, shall be subject to the said Rules. It may also be noticed that above section 28 of the Act re-inforces the above proviso to section 23 by inter alia providing that subject to the provisions of the Act and Rules made thereunder, a person shall be qualified to be admitted as an Advocate of the Supreme Court if he fulfils such conditions as may be laid down in this behalf from time to time by the Rules of the Supreme Court.
6. If we were to read the above Article 191 of the Constitution with the above provisions of the Act, it becomes clear that the Rules have been competently framed and they are not ultra vires the provisions of the Act, but in consonance with the same. However, the petitioner has referred to the case of Karam Elahi Bhatti, Advocate-on-Record, Rawalpindi. v. The Pakistan Bar. Council, Rawalpindi and another (PLD 1991 Journal 34), in which the majority view of the Bar Council's Disciplinary Committee was,that the Bar Council had exclusive jurisdiction to enrol and take disciplinary action against the Advocates of the Supreme Court including Senior Advocates and Advocates-on-Record. The Chairman of the above Disciplinary Committee (The Honourable Acting Chief Justice - Mr. Justice Dr. Nasim Hasan Shah) did not agree with the above conclusion. If we were to read the above proviso to section 23 and section 28 of the Act with the other provisions of the Act, it becomes clear that the Tribunal and the Disciplinary Committee under the Act have exclusive jurisdiction to debar an Advocate from practising before all Courts and Tribunals, whereas under Rules 2 and 30 of Order IV of the Rules, the Supreme Court can only debar an Advocate from practising in the Supreme Court. In this behalf, reference may be made to the provisions of sections 22, 41, 42, 43 and 46 of the Act. There seems to be no conflict between the Rules and the provisions of the Act, as the latter itself has kept intact the power of the Supreme Court in terms of above proviso to section 23 and the provisions of section 28 to regulate the right of a person to appear, act and plead or to be qualified to be admitted as an Advocate, which includes the right to debar an Advocate from practising in the Supreme Court or to remove his name from the roll.
7. Mr. Yusuf Ali Khan has also referred to the case of Province of East Pakistan and another v. Nur Ahmad and another (PLD 1964 SC 451), wherein it has been inter alia held that the Rule making authority cannot clothe itself with powers which statute itself does not give. There cannot be any cavil to the above proposition. The words 'to make the rules regulating the practice and procedure' used in Article 191 of the Constitution, are of wide import and if they are to be read with the above provisions of the Act, it becomes clear that the Supreme Court has the power to frame Rules in question. It may also be observed that the Supreme Court Rules, 1956, also contained similar provisions.
8. Adverting to the petitioner's above third submission that even if it is to be held that the Rules were competently framed and are intra vires the provisions of the Act, the same could not have been applied retrospectively to the petitioner as the same were framed on 20-11-1980, whereas the petitioner signed the Roll of Advocates of this Court on 12-6-1975, it may be observed that in support of his above contention, he has referred to the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), in which inter alia it has been held that procedural matters can be given retrospective effect provided if they do not touch upon a right in existence at the time of passing of legislation.
There cannot be any dispute about the above legal proposition. However, the question which requires consideration is, as to whether the above principle of law can be pressed into service in the present case. If an Advocate commits an act which is amenable under Rules 2 and 30 of Order IV of the Rules on a date when the same are in force and operative, the action is to be taken under the above Rules and not on the basis of the Rules which might have been in force at the time when the Advocate concerned signed the Roll of the Supreme Court for practising. The petitioner has relied upon the case of Muhammad Ibrahim Munshey and others v. Province of West Pakistan through Chief Secretary and others (PLD 1968 SC 1). The above case in fact does not support his case. On the contrary, in the same it has been inter alia held that a case is to be decided on the basis of a law obtaining at the time of commencement of the proceedings. In the present case admittedly the Rules were in force at the time when the petitioner addressed his letter, dated 20- 12-1990 to Mr. Justice Saad Saood Jan, show-cause notice was issued to him and the order which is sought to be recalled, was passed. It is, therefore, evident that the Rules have not been made applicable retrospectively. If we were to apply some Rules which might have been framed after the issuance of the show-cause notice, the petitioner might have a case to argue, but this is not the case. It may also be pertinent to mention that even 1956 Rules have parallel provisions to above Rules 2 and 30 of Order IV of the Rules. Additionally, the above proviso to section 23 and section 28 of the Act were very much in the field at the time when the petitioner signed the Roll of this Court on 12-6-1975.
9. Reverting to the last submission of the petitioner that, in any case, on merits the action taken against the petitioner was not warranted, as the letter, dated 20-12-1990 was addressed by him to Mr. Justice Saad Saood Jan as his relation and not as a Judge, it may be observed that the same is not simpliciter a personal letter addressed by the petitioner to Mr. Justice Saad Saood Jan, but it relates to the Court working as well. In the above letter, the petitioner asked Mr. Justice Saad Saood Jan not to hear his cases.
10. The upshot of the above discussion is that the above application even otherwise has no merits.
The same is, therefore, dismissed.