' CH. IJAZ AHMAD, J.---The brief facts out of which the present Intra-Court appeal arises are that the election of the Punjab Bar Council was held under the provisions of the Legal Practitioner and Bar Council Act, 1973 and rules framed thereunder on 30th November, 1991. Respondent No,1 issued the notification of the returned candidate on 24-12-1999. The appellant, Ch. Riasat Ali and Ch. Asghar Ali Gill, respondent No,2 were contestants among others to the 23 seats reserved for District Lahore. According to the number of votes secured, respondent No,2 was placed at No,3 while the appellant stood at No,26. Consequently, respondent No,2 was declared as returned candidate.
Respondent No,2 was appointed as "Head of the Prosecution and Monitoring cell" in the Law Department, Government of the Punjab for the Special Courts established under Anti-Terrorism Act, 1997 on contract basis for a period of one year at the monthly remuneration of Rs.65,000.
Respondent No,2 assumed the charge on 1-8-2000. One Azar Latif Khan, Advocate and Member of Punjab Bar Council, filed an application to the Secretary Punjab Bar Council pointing out that respondent No,2 had been appointed as "Head of the Prosecution and Monitoring Cell" in the Law Department, Government of the Punjab for the Special Courts, therefore, respondent No,2 has ceased to be a member of the Punjab Bar Council in view of section 5-C(a) of the aforesaid Act and rules framed thereunder. Azar Latif Khan also asked that the person securing next highest votes be notified as having been elected to the Punjab Bar Council. The Secretary Punjab Bar Council submitted a summary to respondent No,1 on 22-9-2000 in view of letter dated 13-9-2000 of Azar Latif Khan. Respondent No,1 did not pass any order on the summary submitted by the Secretary Punjab Bar Council till 12-12-2000. The appellant also requested respondent No,1 through a letter stating therein that respondent No,2 ceased to be a member of the Punjab Bar Council and that in his place the appellant be declared to have been duly elected. Respondent No,1 dismissed the applications which were filed before him against respondent No,2 vide order Annexure-D attached with the writ petition by observing that the holder of the post created by the contract does not fall in the category of the person "in service of Pakistan" and would not be falling within the mischief of section 5-C of the Legal Practitioners and Bar Council Act, 1973. The appellant being aggrieved filed a Constitution Petition No,25101 of 2000 with the following prayer:-- "It is, therefore, respectfully prayed that the writ petition may be accepted and, by setting aside the impugned order of the learned returning Officer/Advocate-General, a declaration may be granted that by virtue of the provisions of section 5-C of the Legal Practitioners and Bar Councils Act, 1973, respondent No,2 ceases to hold office of the Member of Punjab Bar Council w,e,f, 1-8-2000 and as a consequence thereof the petitioner who has obtained the highest number of votes after the member the vacancy in whose seat has to be filled may be notified as member of the Punjab Bar Council.
' Any other relief which is deemed appropriate may be granted with costs.
' Meanwhile it is prayed that election notification of respondent No,2 may be suspended and he be restrained from performing functions as member of, the Punjab Bar Council.
' The learned Single Judge dismissed the Constitutional petition vide impugned judgment dated 28-2-2001, hence the present Intra-Court appeal.
2. On account of peculiar circumstances of the case after filing the I.C.A., the learned Advocate- General Punjab was directed to assist the Court keeping in view the subsequent events in the capacity as Advocate-General. The Advocate-General, Punjab submits that I.C.A. Is maintainable as no appeal is provided against the order of the Chairman/ Advocate-General Punjab under the provisions of the aforesaid Act before Pakistan Bar Council, therefore, the I.C.A. Is maintainable. In support of his contentions be relied upon Brother Steel Mills Ltd. And others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543 and Messrs Modern Continental Business (Pvt.) Limited v. Government of Pakistan and others 2002 CLC 233. He further submits that Legislature in its wisdom has prescribed the following three categories with regard to the qualification/disqualification and cessation of membership:- ' Section 5-A Qualification for Membership of Provincial Bar Council.
' Section 5-B Disqualification for Membership of Provincial Bar Council.
' Section 5-C Cessation for Membership of Provincial Bar Council.
' He further submits that respondent No,2 had ceased to be a member of the Punjab Bar Council after accepting the assignment as "Head of the Prosecution and Monitoring Cell" in the Law Department, Government of the Punjab for the Special Courts, on a contract on the monthly remuneration of Rs.65,000. Respondent No,2 automatically ceased to be a member of the Punjab Bar Council in view of section 5- A(a), therefore, order passed by respondent No,1 is not valid order in the eyes of law. In support of his contentions, he relied upon the following judgment:-- ' Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang IV. PLD 1994 SC 60 and D.R.
Gurushanthappa, v. Abdul Khuddus Aware and others AIR 1969 SC 744 ' He further urges that Act be read as organic whole specially section 5-A, section 5-B, section 5-C, section 6(7), section 6(4) and section 26(2) read with clauses h, i, j, of Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973 then there is only one interpretation possible i,e, once respondent No,2 accepts the assignment as "Head of the Prosecution and Monitoring Cell" in the Law Department, Government of the Punjab for the Special Courts, for remuneration then he ceases to be member of the Punjab Bar Council automatically. He further submits that the Legislature has specially used the word 'shall' in section 5-C which is mandatory in nature. He further urges that at the time of interpreting the provisions of any statute the intention of the legislation must be kept in mind. In support of his contention, he relied upon Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32. He also relied upon the following passages from Understanding Statutes Canons of Construction of Second Edition by an eminent Jurist of this country by Mr. S.M. Zafar Advocate. The relevant paragraphs are reproduced hereunder:--
(i) Express Declaration in Statute: A provision is mandatory where it is declared by the statute to be so.
(ii) The word "shall" may be construed as mandatory.
' He summed up his arguments that respondent No,2 ceases to be member after accepting the assignment as respondent No,2 falls in the category of office of profit in the service of Pakistan read with Article 260 of the Constitution. He further urges that in case the Member of Punjab Bar Council is appointed as Assistant Advocate-General then he ceases to be a Member of the Punjab Bar Council. In support of his contention, he relied upon Muhammad Khursheed Khan v. Returning Officer 1998 SCM R 425.
3. Ch. Riasat Ali appellant submits that respondent No,1 had passed the order in the capacity of Chairman Punjab Bar Council, therefore, appeal is not provided under section 13(2) of the aforesaid Act which clearly envisages any person aggrieved by an order or decision of the Provincial Bar Council, may file an appeal within 30 days to the Pakistan Bar Council. The word "Bar Council" means a Bar Council constituted under the aforesaid Act by virtue of section 2(b) and member in relation to Bar Council does not include the Chairman thereof in view of section 2(ee) in the said Act read with section 5(a) which clearly prescribes the composition of the Provincial Bar Council consisting of two parts:--
(i) ' The Advocate-General of the Province, ex-officio; and such number of members as may be elected by the Advocates on the Provincial roll from amongst themselves read with sections 7, 9, 10, 11 and rule 4 of the Pakistan Bar Council Appeal Rules, 1986. He further submits that notification of the appointment of respondent No,2 dated 26-7-2000 clearly reveals that respondent No,2 was appointed at fixed salary of Rs.65,000. Subsequently Secretary Law issued a notification on 1-11- 2002 that respondent No,2 is not a civil servant as defined in the Punjab Civil Servant Act, 1974 after filing application before respondent No,1 by the appellant and Azar Latif Khan Member Punjab Bar Council. The summary was also prepared on 19-8-2000 to allow extra allowances to respondent No,2 and notification was also issued by the Government of the Punjab Law and Parliamentary Affairs Department on 11-10-2000. In spite of the subsequent summary and the notification to allow certain privileges/allowances to respondent No,2, does not change the status of respondent No,2 qua holding the office of profit in the service of Pakistan. He further submits that the learned Single Judge erred in law to interpret section 5-C of the aforesaid Act, which is not in accordance with law laid down by the Honourable Supreme Court in Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32 and Muhammad Khursheed Khan v.
Returning Officer 1998 SCM R 425. He further submits that I.C.A. Is in continuation of Constitutional petition, therefore, same should be decided on the basis of the cause of action accrued to the appellant at the time of filing the Constitution petition. He further urges that the appellant has filed an application against respondent No,2 before respondent No,1 under the provisions of a Special Law, therefore, position in the eyes of law cannot be changed on account of subsequent events. He further submits that respondent No,2' had incurred disqualification after the election, therefore, he would be disqualified to remain as a member of Punjab Bar Council. In support of his contention, he relied upon Sabru Din v. Mushtaq Hussain Bhatti and two others PLD 1993 SC 412; Muhammad Shafiq v. Returning Officer 1983 SCM R 105 and Muhammad Hussain Shah v. Muhammad Shafiq 1983 SCM R 172. He further urges that law is interpreted in such a manner to advance the object of law. In support of his contention, he relied upon Abdul Majeed Khan v. The Chief Settlement Rehabilitation Commissioner PLD 1968 SC 154 and Saif Ullah v. Selection Committee for Admission 2001 YLR 2014.
4. Mr. Hamid Khan, Advocate for respondent No,2 submits that appeal has become infructuous on account of the subsequent events which are as follows:--
(1) Asif Mehmood Cheema has been appointed as Assistant Advocate-General vide Notification dated 6-2-2003.
(2) Appellant has also filed an application to the Advocate-General/ Chairman Punjab Bar Council, Lahore that appellant has obtained the highest number of votes, therefore, under section 16 of the aforesaid Act, appellant be declared as elected member of Punjab Bar Council in place of Asif Mehmood Cheema.
The Advocate-General passed the following order on 24-2-2003:-- "The matter is sub judice, it would not be appropriate for me to pass any order."
' Respondent No,2 had also resigned from the assignment as Head of Prosecution on 31-1-2003. He further submits that impugned judgment of learned Single Judge is in accordance with the dictum laid down by the superior Courts as respondent No,2 was not holding any office in service of Pakistan in fact respondent No,2 has accepted the assignment like a Legal Advisor, which was admitted by the law officer under instructions who argued the case before the learned Single Judge as is evident from para 10 of the impugned judgment. In support of his contention he relied upon the following judgments:-- ' Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang-IV PLD 1994 SC 60 and Muhammad Khursheed Khan v. Returning Officer 1998 SCM R 425.
' He further urges that I.C.A. Is not maintainable as the Chairman of Punjab Bar Council is a component of Punjab Bar Council as is envisaged by section 5 of the aforesaid Act read with section 2(b) Bar Council, (ee) member read with rule 2(ii) of Pakistan Legal Practitioners and Bar Council Rules, 1976. Rule 2(b) Chairman means in relation to the affairs of a Provincial Bar Council, the Chairman of the Provincial Bar Council concerned. Rule 3(i) Returning Officer means in relation to election to a Provincial Bar Council the Advocate-General of that Province in view of the Pakistan Legal Practitioners and Bar Council Rules, 1976 Rule 69 Advocate-General shall act as Returning Officer for the purpose of election to the Vice-Chairman of Provincial Bar Council. Rule 28(A)(iv) filling of casual vacancies, the Chairman of the Provincial Bar Council shall cause the name of such co-opted person to be notified in the official Gazette as member of such Bar Council. Rule 84(a) the Chairman of Bar Council shall be responsible for ensuring the due compliance with the provisions of the Act and the rule of the Pakistan Legal Practitioners Bar Council, 1976. The competent authority has framed rules under section 55 read with section 13 of the aforesaid Act under the name and style, the Pakistan Bar Council Appeal Rules, 1986 according to which rule 2(iii)
Bar Council means a Bar Council of the respective Province. Rule 2(iv) Executive Committee means an Executive Committee of the Provincial Bar Council. Rule 4 manner of filing appeals. Rule 4(i) prescribes an appeal against an order or decision of Provincial Bar Council or an Executive Committee of the Bar Council shall be filed with the Chairman of the respective Committee. By referring the aforesaid provisions of Act and rules, he submits that the Chairman Punjab Bar Council has different capacities i,e,:--
(i) Ex-officio Chairman Punjab Bar Council,
(ii) Returning Officer at the time of holding general elections of the Punjab Bar Council,
(iii) Returning Officer at the time of holding election of a Vice-Chairman.
' He further urges that it is a constant practice of the department that any order passed by the Chairman of the Punjab Bar Council in any capacity, the aggrieved person had filed appeals before the Pakistan Bar Council under section 13(2), therefore, I.C.A. Is not maintainable. He further submits that Malik Muhammad Qayyum, Ch. Muhammad Farooq and Mr. Nizam Ahmad were appointed as Deputy Attorney-General at the time when they were members of the Provincial Bar Council, but they were not de-seated. He further submits that provisions of Legal Practitioners and Bar Council with regard to election are penal in nature; therefore, the same should be construed strictly. He further submits that judgments relied by the appellant and learned Advocate-General, Punjab, would support the cause of respondent No,2, therefore, the learned Single Judge was justified to non-suited the appellant. He further submits that Intra-Court appeal is not maintainable as the appellant has remedy to file appeal before the Pakistan Bar Council against the decision of respondent No,1 under section 13(2) of the Legal Practitioners and Bar Council Act, 1973 read with section 2(b), 2(ee), section 5, rule 2-B(ii), rule 3(i) rule 69, 28-A(iv), rule 84(A) of Pakistan Legal Practitioners and Bar Council Rules, 1976 and rule 2(iii) and (iv) read with rule 4 of Pakistan Bar Councils Rules, 1986.
5. The appellant was asked whether he has submitted an application to be declared as returned candidate in place of Mr. Asif Mehmood Cheema, Member Punjab Bar Council ' (Now Assistant Advocate-General), he has given reply in affirmative. He was directed to provide copy of the application and order passed by respondent No,1 on his application, the appellant has produced the same.
6. We have considered the contentions of the learned counsel of the parties and perused the record ourselves.
7. Without adverting to the contentions of the learned counsel for the parties and learned Advocate-General, we intend to decide this appeal on account of subsequent events which has happened during the pendency of present Intra-Court appeal. It is better and appropriate to reproduce basic facts with regard to subsequent events in seriatim to resolve the controversy between the parties:--
(1) The election of Provincial Bar Council was held on 30-12-1999.
(2) The appellant and respondents No,2 were contestants amongst others to the 23 seats reserved for District Lahore.
(3) According to the number of votes secured respondent No,2 was placed at No,3 while the appellant stood at Sr.No,26.
(4) Respondent No,2 was appointed as head of Prosecution and Monitoring Cell in the Law Department, Government of Punjab vide Notification dated 26-7-2000.
(5) The appellant filed an application before the Advocate-General/ Chairman Punjab Bar Council, Lahore with prayer to de-seat respondent No,2 and issued notification in place of the appellant as returned candidate under section 16(B) of the Legal Practitioner and Bar Council Act, 1973.
(6) The Chairman Punjab Bar Council/Advocate-General rejected the application vide impugned order attached with writ petition as Annexure-D.
(7) The appellant filed Constitutional Petition No,25101 of 2000 which was dismissed by the learned Single Judge vide impugned judgment dated 28-2-2001.
(8) Respondent No,2 resigned from the said post on 31-1-2003.
(9) Mr. Asif Mehmood Cheema, Member of Punjab Bar Council was appointed as Assistant Advocate-General vide Notification dated 6-2-2003.
(10) The appellant filed an application before the A.G./Chairman, Punjab Bar Council, Lahore on 18- 2-2003 with the prayer that the appellant be declared as a member of Punjab Bar Council in-place of said Mr. Asif Mehmood Cheema.
(11) The Chairman Punjab Bar Council passed the following order on 24-2-2003:-- "Matter is sub judice, it would not be appropriate for him to pass any order." ##TR##
8. The appellant also submitted an application before the Vice-Chairman, Punjab Bar Council, Lahore on 20-3-2003 with the prayer to supply the order passed by the Chairman on the application of the appellant, which was received by the Vice-Chairman on behalf of the Chairman Punjab Bar Council on 21-3-2003. The Secretary of the Chairman Punjab Bar Council supplied the copy of order to the petitioner vide letter dated 21-3-2003.
9. It is better and appropriate to highlight the case-law on the subject regarding subsequent events keeping in view the aforesaid circumstances to resolve the controversy between the parties.
The Honourable Supreme Court has considered the proposition of law in the case of Mst. Ameena Begum v. Mehr Ghulam Dastgir PLD 1978 SC 220 and after considering all the case-law on the subject, upheld the observations made by Madras High Court in Lakshmi Ammal and others v.
Narayanaswa mi Naicker and others AIR 1950 Mad. 321 to the following effect:-- "The ordinary rule is that a Court should give its decision on the facts and circumstances as they existed at the date of institution of the suit or at the date of any subsequent amendment of pleadings and should not take notice of events or decision which have happened after such date."
' In this very decision, the Honourable Supreme Court also produced the following passage from commentary under rule 7 of Order 7 of, C.P.C. By Mulla (12th Edition).
"The ordinary decree in a suit should accord with the right of the parties as they stand at the date of its institution. But where it is shown that original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice at subsequent events which have happened since the institution of the suit and to mould its to the circumstances as they stand at the time the decree is made."
10. The Honourable Supreme Court finally held in the aforesaid judgment in Mst. Ameena Begum v.
Mehr Ghulam Dastgir PLD 1978 SC 220 which is as under:-- "Indeed in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the large interest of justice."
11. It is settled principle of law that the Court is entitled to take notice of the subsequent events for the purpose of doing full and complete justice to the parties and for giving the effective relief to the petitioner/appellant. In appropriate cases, it is not only the power but duty of the Court to consider the changed circumstances, where it is shown that the original relief claimed by the petitioner/appellant, has, by reason of subsequent change in the circumstances, become useless or inappropriate or where it is necessary to take notice of changed circumstances to shorten the litigation or a new relief may serve the purpose better or that a relief is required to be re-shaped or moulded in the light of change in facts or in law to do the complete justice between the parties, the Court is bound to depart from the general rule and mould the relief in the light of altered circumstances.
12. Similarly, if during the pendency of petition/appeal for getting admission, the petitioner/appellant himself has obtained the admission elsewhere, the Court taking into account that subsequent event, may not grant relief in his favour. In arriving to this conclusion, we are fortified by Ashish Sharma's case (1986) Supreme Court Cases 1. The Indian Supreme Court has also considered the aforesaid proposition of law in Pasu Palti's case (1975) 1 Supreme Court Cases
770. The relevant observation is as under:-- "It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal, it cannot blink at.. It or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated; with a view to promote substantial justice---subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed."
13. We are also fortified by law laid down by the Honourable Supreme Court in Dr. Habib Ullah's case PLD 1973 SC 144. The ratio of said case is as follow:-- "Where the petitioner aggrieved by selection by the Public Service Commission, participated in another selection subsequently, the petitioner cannot challenge previous selection as the previous matter is deemed to be past and closed."
14. We are also fortified by the law laid down by Calcutta High Court in Mst. Swarnalata Biswas v.
State of West Bengal and others AIR 1952 Calcutta 687 and the ratio is as follow:-- "The High Court is entitled to take notice on subsequent events for the purpose of giving complete and effective relief to the petitioner in Constitutional jurisdiction."
' The Indian Supreme Court has also considered this proposition of law in Kanaya Ram v. Rajendra Kumar AIR 1985 SC 371 and laid down the following principle:-- "Court must take into account subsequent event and mould relief accordingly.
' The aforesaid proposition of law is also supported by the following reported judgments:-- ' Muhammad Rashid's case 2001 M LD 548; WAPDA's case 2001 PLC 304 and Muhammad Nazir's case 2001 CLC 767 ' In view of what has been discussed above, the appeal has become infructuous and keeping in view of principle laid down by the superior Courts in the aforesaid judgments, we direct respondent No,1 to notify the appellant as Member of Punjab Bar Council in place of Mr. Asif Mehmood Cheema, who has been appointed as Assistant Advocate-General vide Notification dated 6-2-2003 in view of law laid down by the Honourable Supreme Court in Muhammad Khursheed Khan v. Returning Officer 1998 SCM R 425 within 10 days from today.
Appeal held to be infructuous.