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Criminal Petition No. 83‑R of 1985 out of Criminal Miscellaneous Petition for Special Leave to Appeal No. 109‑R(S) of 1985, decided on 19th July, 1986.

(From the Order of the Federal Shariat Court, dated 5‑11‑1985 passed in Criminal Revision No. 47/L of 1984).

‑‑‑Arts. 203‑F, 203‑E(4) 203‑E(6) & 203‑J‑‑Federal Shariat Court (Procedure) Rules, 1981, R . 2 (e)‑‑Counsel, definition of‑‑Interpretation and vires of R. 2(e)‑‑Question arising whether an Ahmadi Counsel could appear and argue Criminal Revision before Federal Shariat Court and whether R. 2(e) was ultra vires of certain other statutory and constitutional provisions‑‑Questions involved being not only of general public importance but also of first impression, leave to appeal granted.

‑‑‑Art. 203‑F‑‑Leave to appeal, grant of‑‑Questions involved being of general public importance and of first impression‑‑Leave to appeal granted.

Ch. Ghulam Mujtaba, Advocate‑on‑Record for Petitioner.

Riazul Hassan Gilani, Deputy Attorney‑General for the State.

Date of hearing: 19th July, 1986.

Leave to appeal has been sought from order, dated 5‑I1‑1985 of the Federal Shariat Court; whereby Ch. Ghulam Mujtaba who has called himself before us as an "Ahmadi Muslim" was barred from appearance and acting as a counsel before that learned Court. The petitioner engaged Mr. Ghulam Mujtaba in a revision against acquittal. It was drafted and filed by the latter before the Federal Shariat Court on behalf of his client, namely, the petitioner herein. When the matter came up before the Court for hearing on 10‑4‑1985 the Court raised the question as to whether "being an Ahmadi" the learned counsel could argue the revision petition "under the Constitution and Rules of this Court". Notice was also issued to the Advocate‑General td argue the legal point. On the next date of hearing Mr. Ghulam Mujtaba sought adjournment "in order to seek instructions from his community as the issue involved was of general public importance". The matter was adjourned for a week. It came up finally on 5‑11‑1985 when the following short order was passed:

"Muhammad Ashraf, petitioner may be asked to engage another counsel, if so advised and appear before this Court on 17‑11‑1.985."

Learned counsel states that elaborate arguments were addressed on the question raised. Not only this, some days prior to 5‑11‑1985 written arguments had also been placed on record, but, none of them has been mentioned in the short order passed by the learned Judges of the Federal Shariat Court.

It may straightaway be observed that on account of the impugned order being very short this Court is unable to understand as to how the questions raised before the Federal Shariat Court on behalf of the petitioner were resolved. Be that as it may, the learned counsel has stated that presumably the Federal Shariat Court has relied on rule 2, clause (e) of the Federal Shariat Court (Procedure) Rules, 1981. It reads as follows:‑

"Counsel" means a legal practitioner who is a Muslim and has been enrolled as an Advocate of a High Court for a period of not less than five years or as an Advocate of the Supreme Court. "

There is a similar constitutional provision but in a different context which also needs to be reproduced. It is Article 203‑E, Clause (4) and reads as follows:‑‑

"A party to any proceedings before the Court under clause (1) of Article 203‑D may be represented by a legal practitioner who is a Muslim and has been enrolled as an Advocate of a High Court for a period of not less than five years or as an Advocate of the Supreme Court or by a jurisconsult selected by the party from out of a panel of juris consults maintained by the Court for the purpose."

Clause (6) of Article 203‑E is also relevant for consideration It reads:

"A legal practitioner or jurisconsult representing a party before the Court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so far as may be known to him and submit to the Court a written statement of his interpretation of such Injunctions of Islam. "

Learned counsel has argued that rule 2(e) read with Article 203‑E(4) can be understood to have applied to the proceedings of the Federal Shariat Court which are conducted by virtue of power conferred on it by Article 203‑D which deals with the examination of laws so as to discover repugnancy to the Injunctions of Islam. It, therefore, does not apply to that part of the jurisdiction of the Federal Shariat Court wherein it hears appeals and revisions in criminal matters decided under the Hudood Laws. He also contended that rule 2(e) is ultra vires the following statutory and constitutional provisions:

One: Section 22(2)(a) of the Legal Practitioners and Bar Councils Act, 1973, where under a legal practitioner is entitled to practise and act before any Court;

Two.: Section 21 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), which places limitation of religion on Court officials only to the extent that the Presiding Officer of the Court shall be Muslim. A lawyer is also an officer of the Court. There is nothing in the said law regarding his being Muslim;

Three: The Ordinance has by virtue of section 20 thereof made Criminal Procedure Code applicable to the cases dealt there under and neither the Criminal Procedure Code nor any other law which deals with the law of criminal offences places any bar on the religion of the counsel appearing for any party;

Four: Article 203‑E(4) of the Constitution wherein a specific bar has been enacted regarding the religion of the counsel but it pertains to the jurisdiction and power of the Federal Shariat Court under Article 203‑D and not when it decides criminal cases. By implication, therefore, the Constitution not having placed any such bar, it is argued, it could not be created by the rule‑making power of the Federal Shariat Court;

Five: Articles 10, 18 and 25 of the Constitution with regard to: engagement of a counsel of one's choice; right of freedom to profession, and, equality before law would, it was finally argued, also come in conflict with rule 2(e) which cannot override these Constitutional provisions.

Learned counsel wanted to argue that such a bar would come in conflict with the Islamic Injunctions as contained in the Quran and Sunnah of the Holy Prophet, therefore, it would have to be struck down; but ultimately agreed that this objection could have been raised before the Federal Shariat Court by a petition under Article 203‑D and not collaterally in the criminal proceedings as are involved in this case. We, therefore, would for this reason keep aside this last argument of the learned counsel.

Mr. Riazul Hassan Gilani, learned Deputy Attorney‑General in reply contended that the Federal Shariat Court (Procedure) Rules, 1981, were promulgated after the conferment of the jurisdiction on the Federal Shariat Court to hear appeals and revisions in cases arising out of Hudood Laws. Therefore, it will have to be presumed that it was conscious that the Rule would apply to the proceedings under both the jurisdictions of the Federal Shariat Court. It, therefore, cannot be presumed that it applies only to cases arising under Article 203‑D of the Constitution. He also contended that the rules have been framed by virtue of power conferred on the Federal Shariat Court by Article 203‑J. And that being so, even if it comes in clash with any statute law or provision of the Constitution directly or indirectly, it will have force by virtue of supporting strength gained from the said constitutional provision, namely, Article 203‑J.

The questions raised from both sides are not only of general public importance but are of first impression. We, therefore, consider it a fit case for grant of leave to appeal.

Order accordingly.

M. I. Leave granted

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