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Criminal Revision Application No. 148/1954, decided on 13th December, 1954.

S. 36 Touts‑Enquiry‑Nature of‑Procedure‑Meeting of Bar Asso ciation should be specially convened‑Touts proposed to be declared should be specified not necessarily by parentage or address ‑Enquiry not a judicial enquiry‑No notice from declaring authority (District Magistrate) necessary: Applicants must approach him for being heard before final orders. [Case law referred to]

Debin Nai v. Emperor, A I R 1931, Nag. 187, and Mulchand Bhopatrai 1920 Sind 70 dissented from.

S. 17‑Powers of superintendence, direction and control‑Limits.

Powers of superintendence, direction and control within the meaning of Section 17 of the Sind Courts Act are limited. Interference is called for only where any principle of natural justice has been violated or there has been some serious error in the procedure which has prejudiced the applicants or there is no evidence to warrant the conclusion to which the District Magistrate came.

Motiur Rehman, Ghulam Hussain, Mohammad Asghar, Athar Saeed, Ahmad Saeed and Azizuddin Ahmad, for Appli cants.

LARI, J.‑By an order, dated 7th May, 1954, Mr. Z. A. Hashmi, District Magistrate, Karachi directed that 123 speci fied persons should go to frame a list of touts as provided by section 36 of the Legal Practitioners Act 18 of 1879. Against this order 23 of them have filed several revision petitions under section 17 of the Sind Courts Act 7 of 1926, and as all these revision petitions involve common question of law they are being disposed of by the same judgment.

The Karachi Bar Association met on 3rd October, 1953, and passed resolutions to the effect that 129 persons specified in the minutes book Exhibit 5 and complaint Exhibit 6 were touts and approached the District Magistrate for declaring those persons as touts under section 36 of the Legal Practi tioners Act. The District Magistrate referred the complaint to the City and A. D. M., Karachi for holding an enquiry. The City and A, D. M. Karachi held an enquiry and recorded his findings on 15th April 1954 and submitted the same to the District Magistrate, Karachi. The City and A. D. M. Karachi Mr. S. M. Qureshi held that 123 persons mentioned in the accompanying list marked 'F' have been proved to be touts and they may be declared as such. Ten of these 123, who are applicants in Revision Application No. 150 of 1954 appeared before the District Magistrate and contested the findings of the Enquiry Officer. The District Magistrate after hearing the counsel on behalf of the objectors rejected their objections and upheld the findings of the Enquiry Officer and ordered that all the 123 persons specified in list "F" should go to frame a list of the touts and they be prohibited from entering the precincts of the City Courts and all Courts subordinate' to the District Magistrate.

During the course of arguments some common questions were raised and it is desirable to deal with them in the first instance. The first contention of the learned counsel for the applicants was that the resolution adopted by the Karachi Bar Association had not been passed in accordance with the pro visions of section 36 of the Legal Practitioners Act and hence it could not be admitted in evidence. Explanation to section 36 requires that the meeting of the Association should be h specially convened for the purpose of declaring any person to be or not to be a tout and the resolution should be passed by a majority of the members present at the meeting. It is clear from the notice Exhibit 3 that the meeting of 3rd October 1953 at which the resolution was passed had been specifically convened for the purpose of considering whether persons specified in the notice were to be declared touts or not. It was pointed out to us that description of the individuals had not been given in the notice Exhibit 3. The notice gave names and sometimes gave parentage and address. It was contended that mere giving of the names was not sufficient compliance with the provisions of section 36 of the Legal Practitioners Act. We see no force in this contention. What is required is that the persons to be discussed should be specified. It is not at all necessary to give further description of the indivi dual concerned. Reliance was placed on the case Achar. Khuda Bakhsh v. Bar Association, Karachi (A I R 1937 Sind 4) In this case no names had been mentioned in the notice and the Agenda was merely to consider the question of declaring persons to be touts or not. Their Lordships held that the meeting must be held in regard to any named or specified person. This is what exactly happened in the present case. All the persons whose cases were to be considered had been individually named in the notice Exhibit 3. It was further argued that notices of the meeting had not been served on all the members of the Karachi Bar Association. Mr. Abdul Ghani, Secretary of the Bar Association in his statement stated that "Notices were pasted on the Notice Board of the Karachi Bar Association ins City Courts, Small Cause Court and the Chief Court. I also sent one copy of these notices to each member of the Bar Associa tion and obtained their signatures in token of their receipts. Exhibit 4 is the list of such signatures." Exhibit 4 no doubt does not include the signatures of all the members of the Karachi Bar Association. But there was no cross‑examination of Mr. Abdul Ghani on the point and there is nothing to show that pasting of notices on Notice Board of Karachi Bar As sociation in City Courts, Small Cause Court, and the Chief Court was not sufficient compliance with the Rules of the. Association which alone can determine the manner of serving notices. A meeting has to be convened in accordance with the Rules of the Association and Section 36 does not contemp late that notice of a meeting called for considering whether any person is tout or not should be served on all members of the Association. Reliance was placed in the case Chatur Bhuj v. Emperor (A I R 1931 Lah. 57). This authority does not support the conten tion of the learned counsel for the petitioners in this respect. His Lordship observed :

"The proposition admits of no doubt that a meeting of an Association such as the Bar Association to be valid must be legally and properly convened, that is to say, after proper notice to all its members who are able to attend and that a notice to be proper must be given in a reasonable time before the meeting takes place. It is however not always legally necessary that there should be a personal service of notice on all the members....."

In the present case proper notice had been given to all the members of the Association inasmuch as the relevant notice had been pasted on the Notice Board in Chief Court, Small Cause Court and City Courts. To our mind what is necessary is that the meeting should be convened in the usual manner. Reference may be made in this connection to the case Yeshwant Rao Shantaram v. Secretary, High Court Bar Association, Nagpur (A I R 1932 Nag. 141). His Lordship in this case observed that it was not necessary that the meeting should be summoned by a method different from that usually adopted when meetings of the Association are held or that every member of the Associa tion should receive notice of a special meeting. The Secretary deposed as to the manner in which the meeting was called and there was no cross‑examination of the Secretary on that point and we are satisfied that the meeting was convened in the usual manner.

The above discussion would show that the meeting of the Karachi Bar Association at which the relevant resolution had been passed was convened in the manner required by section 36 of the Legal Practitioners Act and the resolution adopted at that meeting was admissible as evidence of general repute.

The next contention on behalf of the petitioners was that the procedure adopted by the enquiry officer in conducting the enquiry was illegal inasmuch as no further date was fixed for recording defence evidence after the evidence on behalf of the respondent had been completed. In other words the submis sion was that procedure laid down for warrant cases should have been followed. There is no force in this contention. No particular procedure has been laid down in section 36 of the Legal Practitioners Act. What is required is that the persons affected should be given opportunity to show cause against the action proposed to be taken. One of us had considered the import of the words "affording reasonable opportunity for showing cause" in the case Habib Khan v. The Federation of Pakistan (P L D 1954 Sind 199), and it was held that the expression showing cause connoted an opportunity of leading evidence in support of one's allegation and controverting such allegations as are made against one. This requirement can be met by holding enquiry in the manner provided for a summons case or in the manner contemplated for a civil case by Civil Procedure Code and need not be in the manner laid down for warrant cases. The enquiry under section 36 is not a judicial enquiry and it is virtually a departmental enquiry. But the procedure adopted should be such as to meet the ends of justice. This question of procedure has come for consideration in several cases and a reference may be made to one of them. In the case Hari Charan Sarkar v. The District Judge of Dacca (6 I C 327) Their Lord ships of Calcutta High Court observed as follows:

"The position, therefore, reduces itself to this. Section 36 of the Legal Practitioners Act creates a special jurisdiction but does not define the details of the mode in which that jurisdiction is to be exercised. What course is the Court to pursue The obvious answer is, that the course to be adopted should be such as would do substantial justice to the parties brought before the Court."

This case was approved by the Madras High Court in the case R. Varadachariar v. C. R. Kalyanasundaram Iyer (23 Cr. L. J 705).

The enquiry officer in the present case issued notices toy the applicants to appear and show cause on a date fixed in the notice. On the date fixed he admitted written statement and then gave another date to the parties for adducing evidence. On the subsequent fixed date evidence on behalf of the respondent was recorded and the applicants were also called upon to adduce their evidence. Whatever evidence was offered by the applicants the same was recorded. This proce dure in our mind was sufficient to meet the ends of justice. It was not necessary for the Enquiry Officer to give one date for the evidence of the respondent and another date for evidence of the applicants. We are, therefore, of opinion that require ments of section 36 in this respect were fully met.

It was next argued that the District Magistrate did not give notice of the receipt of the findings nor of the date on which he proposed to pass orders to the applicants or any of the alleged touts and because of this omission the impugned order of the District Magistrate was illegal. We see no force in this argument. A plain reading of section 36 of the Legal Practitioners Act would show that the Enquiry Officer had to give an opportunity of showing cause to each of the persons; affected but after the findings had been received the competent authority had neither to give notice of the findings nor of the date on which he proposed to pass final orders. What is required of him is laid down in the proviso to subsection 2 (a) I of section 36 which runs thus:

"Provided that such authority shall hear any such person who, before his name has been so included, appears before it and desires to be heard."

This does not mean that the competent authority had suo moto to issue any notice or fig any date for disposal. But if any alleged tout appeared before passing of the final order the competent authority was duty bound to hear him in this case the applicants in Revision No. 150/54 appeared before the District Magistrate and applied to be heard. The District Magistrate actually heard the arguments and then passed final order. It was open to other applicants to appear before the District Magistrate in the same manner as Habibur Rehman and nine others did. The Enquiry Officer had made a note on the last date of the hear ing that findings would be submitted to the District Magistrate in due course. If the applicants or any of them desired to be heard by the District Magistrate he or they should have approached the District Magistrate for an opportunity to be heard. A mere filing of application to that effect would have served the purpose. It is then and then alone that the District Magistrate would have been bound to hear the applicants in cases other than Revision No. 150/54. Reliance was placed by the counsel for the applicants in the case Debin Nai v. Emperor (A I R 1931 Nag. 187). This case supports partly the contention on behalf of the applicants. The relevant observations run thus:

"While it is not necessary under the Act that a notice should be issued to a person or persons whom the subordi nate Magistrate recommends to be declared touts, the District Magistrate must satisfy himself that the persons against whom action has been taken is aware of the report submitted against him by' the subordinate Magistrate and should not pass a final order against him when he is in igno rance of such a report."

If the learned Judicial Commissioner sought to lay down that it was incumbent on the District Magistrate to issue notice to the persons affected by the findings of the Enquiry Officer we regret we cannot concur with it. Such interpretation is not warranted by the provision to sub section 2 A of section 36. Our view finds support from the decision of the Lahore High Court in the case Sham Lal v. Emperor (A I R 1931 Lah. 543). Addison J. observed:

"It is urged that no notice was issued to the petitioner by the District Judge to appear before him and show cause why his name should not be placed upon the list of touts. It seems to me however that notice need not be issued. The proviso to section 36 (2) (a), Legal Practitioners Act is as follows . . . .

"Nothing is said about the issue of notice to those person but they are entitled to appear before the authority, in this case the District judge, if they desire the authority to hear them".

We are in full agreement with the above observations.

The dairy sheet dated 23rd March, 1954 shows:

"Arguments heard. Report would be submitted to D. M. in due course of time."

The findings are dated 15th April, 1954 while the District Magistrate passed orders on 13th May, 1954. The applicants had enough time in between to approach the District Magis trate as some of them actually did. The applicants even seem to be aware of the actual submission of the findings as would appear from paras. 5 and 6 of some of the Revision Applications including Revision Application No. 148/54.

Now we may deal with the special contention of some of the applicants. It was argued on behalf of the applicants in Revision No. 150/54 that they were not given an adequate opportunity to produce defence. The applicants appeared in Court in response to notice of 5th January, 1954. On 5th January written statements were admitted and 20th January was fixed for further proceedings. On 20th January evidence on behalf of Karachi Bar Association was recorded and statements of applicants in defence were also recorded. The applicants, however, wanted adjournment to enable them to adduce further defence evidence. This prayer was rejected. The applicants had not moved any application for summoning any witnesses nor they submitted any list of defence witnesses. They, however, put in a vague application in which they prayed that the case be adjourned. The Enquiry Officer rejected the application considering that no prior application for summoning any witness had been made nor any list of defence witnesses filed. Opportunity had been afforded to tile applicants to produce defence evidence and the Enquiry Offi cer was fully entitled to reject the prayer of the applicants for further opportunity: We cannot hold that the discretion vested in the Enquiry Officer was illegally exercised.

A similar plea was taken by the applicants in Revision Nos. 148, 152, 151, 166 and 149. But it appears from the Diary Sheet that on 20th Januarv 10:54 the applicants in these cases were directed to bring their defence evidence on 27th January as the case would be finally disposed of on that day. The case came up on 27th January 1954 and evidence on behalf of the Karachi Bar Association was recorded. The applicants however, wanted time for producing defence evidence and this prayer was rejected on the ground that the applicants had beer directed to bring their defence evidence which had not been done and they had not applied for summoning of any defence witnesses. It is clear that adequate opportunity had been afforded to the applicants by the Enquiry Officer to produce defence evidence and he did not commit any illegality in refus ing to give further time.

The cases of Muhammad Nawaz and Abdul Rehman, applicants in Revision Application Nos. 173/54 and 165/54, stand on a different footing. They applied on the very first day, namely, 5th January, 1954 that certain witnesses named by them should be summoned by the Enquiry Officer. No orders seem to have been passed on these applications and when they applied for time to produce defence evidence their request was not acceded to. On the authority of case Moolchand Bhopatrai Applicant (1920, Sind 70), it was argued that the Enquiry Officer was hot bound to summon witnesses and it was the duty of the applicants to bring their own defence witnesses as directed by the Enquiry Officer. We are not prepared to accept the view taken in the above mentioned case. Witnesses may refuse to appear in Courts without summons and it was the duty of the Enquiry Officer to summon the witnesses named by the petitioners Muhammad Nawaz and Abdul Rehman in their applications. This omission on the part of the Enquiry Officer to summon witnesses vitiates the findings against them and their cases have to go back for further enquiry.

It was argued on behalf of the applicants in Revision Applications Nos. 203 and 182 of 1954 that notices of the enquiry before the Enquiry Officer had not been served on them and they were not aware of any proceedings against them. We have gone through the notices issued to the applicants and the report of the process server thereon. We are satisfied that notices were duly served and the applicants had knowledge of the proceedings. The report of the process server in the case of Muhammad Yousuf shows that Yousuf refused to accept notice on the ground that his father's name had not been mentioned in the notice. Usman Ahmad is the own brother of Yousuf. In the case of Qadar Bakhsh the report of the process server shows that he concealed himself after having knowledge of the notice. There is nothing on the record to show that in fact the appli cants were unaware of the proceedings. The applicants in our view deliberately avoided appearance in the Court and must suffer the consequences thereof.

It is well established that in exercising powers of superintendence, direction and control within the meaning of section 17 of the Sind Courts Act our powers are limited and we can interfere only when we find that any principle of natural justice has been violated or that there has been some serious error in the procedure which has prejudiced the applicants or that there is no evidence to warrant the conclusion to which the District Magistrate came. We have given our anxious consideration to the cases of all the applicants and feel that no interference is called for except in the cases of Muhammad Nawaz and Abdul Rehman. The application Nos. 148, 149, 150, 151 152, 166, 182 and 203 are rejected. We, however, accept Revision Applications Nos. 173 and 165 of 1954 and direct that the witnesses named by the applicants in their applications before the Enquiry Officer should be summoned by the Enquiry Officer and the proceedings to start afresh from that stage against them.

A. H. Order accordingly.

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