IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE SH. AZMAT SAEED 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE FAISAL ARAB 
 
CIVIL PETITION NO. 3345 OF 2016 
(On 
appeal 
against 
the 
judgment 
dated 
13.10.2016 passed by the Islamabad High Court, 
Islamabad in Writ Petition No. 3394/2016) 
 
Muhammad Shoaib Shaheen and others 
 
… Petitioners 
VERSUS 
Pakistan Bar Council and others 
 
 
… Respondents 
 
For the Petitioners: 
Mr. Hamid Khan, ASC 
 
 
 
 
Mr. Shoaib Shaheen, ASC 
 
 
 
 
Mr. Ahmed Nawaz Ch, AOR (Absent) 
 
For Respondents (12): 
Ms. Asma Jehangir, ASC 
 
 
 
 
Syed Qalb-i-Hassan, ASC 
 
 
 
 
Ch. Akhtar Ali, AOR 
 
For Respondent (5): 
Mr. Kamran Murtaza, ASC 
 
For Respondent (8): 
Mr. Azam Nazir Tarar, ASC 
 
For Respondent (9): 
Mr. Muhammad Ahsan Bhoon, ASC 
 
For Respondent (20): 
Mr. Qousain Faisal, ASC 
 
 
 
 
Mr. Ghulam Mustafa Kandowal, ASC 
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
For other Respondents: N.R. 
 
For Attorney General: 
Mr. Abdul Rashid Awan, DAG  
 
Date of Hearing:  
16.11.2016 
 
JUDGMENT 
 
 
 
FAISAL ARAB, J.- The petitioners and the respondent 
Nos. 3 to 22 are all elected members of the Pakistan Bar Council 
(Bar Council). The Bar Council, in its meeting held on 03.09.2016 
by exercising majority vote reconstituted all its Committees that 
were constituted earlier on 25.01.2016. This was done by first 
suspending Rule 100 of the Legal Practitioners and Bar Councils 
Rules, 1976 in exercise of the power contained in Rule 185. At that 
CIVIL PETITION NO. 3345 OF 2016 
2
time the tenure ordinarily available to the Committees under Rule 
100 had not yet expired. The petitioners challenged the 
reconstitution of the Committees in Writ Petition No. 3394/2016 
before the Islamabad High Court, which was decided vide 
judgment dated 13.10.2016. It was held that the term of the 
Committees is terminable by exercising the majority vote of the Bar 
Council. It was further held that as the Bar Council voted for the 
reconstitution of its Committees in a meeting in which it was not an 
item on its agenda, let a fresh meeting for the said purpose be 
convened. Aggrieved by such decision, the petitioners have preferred 
the present petition for grant of leave to appeal.  
 
2. 
 
The main ground taken before us by petitioners’ 
counsel is that once the Bar Council constitutes a Committee, it 
shall continue to function without being interrupted by Bar 
Council in any manner until its entire term available under Rule 
100 expires. In other words no change in the composition of 
Committees’ membership could be brought about during 
subsistence of the term available to the Committees. The 
petitioners’ counsel further submitted that Rule 185 was wrongly 
invoked as it is meant for removing difficulties only and cannot be 
used to remove the protection accorded to the tenure of the 
Committees under Rule 100. In the alternative, it was also argued 
by the petitioners’ Counsel that even if it is assumed that the 
Bar Council possesses the power to reconstitute its Committees 
before their term expires, in the past this has been done with 
the consensus of all members of the Bar Council whereas in the 
present case no such consensus was reached and thus the past 
CIVIL PETITION NO. 3345 OF 2016 
3
practice which also has the force of law was not honoured by 
the Bar Council. The counsel for the respondents, on the other 
hand, argued that nothing in the Legal Practitioners & Bar 
Councils Act, 1973 or the Rules bars the Bar Council from 
reconstituting its Committees or remove the members from the 
Committees as the powers which the Committees exercise under 
the law originally vest in the Bar Council.  
 
3. 
 
It may be clarified at the very outset that the 
Chairman of the Disciplinary Committee as well as Enrolment 
Committee are nominated by the Chief Justice of Pakistan from 
amongst serving Judges of this Court. They being ex-officio 
members are not under the authority of the Bar Council so they 
only cease to be members of the Committees when they cease to 
be judges of this Court or the Chief Justice of Pakistan in their 
place nominate other judges as Chairmen or the Committees 
which they chair complete their term. Except for these two ex-
officio members, the rest of the members of the Committees are 
chosen by the Bar Council from amongst its members and the 
issue involved in this case relates to such chosen members only.  
 
4.  
 
Now taking the issue of past practice first, the 
history on this issue shows that on four occasions in the past, 
the Pakistan Bar Council reconstituted its Committees before 
expiry of their term. This happened in 56th meeting of the Bar 
Council held on 12.02.1987, 177th meeting held on 23.08.2008, 
193rd meeting held on 25.5.2012 and 204th meeting held on 
CIVIL PETITION NO. 3345 OF 2016 
4
31.1.2013. 
In 
the 
56th 
meeting, 
all 
Committees 
were 
reconstituted with unanimous decision. In 177th meeting, 
Committees were reconstituted by majority vote. Though 
objection under Rule 100 was taken in this meeting but the 
same was overruled. In 193rd and 204th meetings, Committees 
were reconstituted again by majority votes after suspending the 
operation of Rule 100 by invoking Rule 185. It can be seen that 
only on one out of four occasions in the past, reconstitution was 
done with the consensus of all members of the Bar Council. In 
the remaining three occasions, decision was taken by majority 
vote. From this, a consistent past practice of reaching the 
decision with consensus is not established. Had that been so, 
still the same cannot be given effect to for the simple reason that 
the petitioners have themselves based their claim on the 
interpretation of the Legal Practitioners and Bar Councils Rules 
1976, which have the force of law whereas the claim of 
establishing past practice based on consensus occurred only 
once and that too when the Rules were already in operation. No 
customary practice or usage can be sought to be enforced which 
is contrary to the codified law. Past practice can never 
substitute codified law as no law can be made inoperative 
through obsolescence as long as it is in the field. Therefore, 
unless a solution to an issue could not be found in the law 
itself, the plea of past practice cannot succeed.  
  
5. 
 
What triggered reconstitution of the Committees on 
03.09.2016 is not an issue before this Court to decide. The issue 
CIVIL PETITION NO. 3345 OF 2016 
5
is, was it done in a way that is permissible in law? The 
resolution of the controversy with regard to the tenure of the 
Committees verily lies in exploring the real intent behind 
incorporating Rule 100 in the Legal Practitioners and Bar 
Councils Rules, 1976. Rule 100 reads “The term of every 
Committee shall be the same as that of the Council itself unless 
the Bar Council when constituting the Committee provides 
otherwise.” This Rule has two parts. The first part reads “The 
term of every Committee shall be the same as that of the Council 
itself”. What this part conveys is that the Committees cannot 
outlive the life of the Bar Council that has constituted them. The 
day the term of office of a Bar Council comes to an end the then 
existing Committees stand decommissioned and all unfinished 
business of the Committees stand terminated. All members of 
the Committees then shall be deemed to be released of their 
authority and responsibility arising from or in connection with 
their assignment on the Committees. The second part of the rule 
reads “unless the Bar Council when constituting the Committee 
provides otherwise”. This part is simply intended to convey that 
it is not necessary that the term of the Committees to always 
remain co-extensive with the life of the Bar Council as the 
Committees could also be constituted for a different term i.e. a 
term which is shorter than the life of the Bar Council. Obviously 
under the second part of the Rule, no term can be fixed which 
lasts beyond the life of the Bar Council as it would defeat the 
very object of the first part of the Rule. So the second part of the 
Rule facilitates fixation of a term that is shorter than the term of 
CIVIL PETITION NO. 3345 OF 2016 
6
the Bar Council. Rule 100 thus only provides for the maximum 
term for which the committees can last i.e. either equal to the 
life of the Bar Council or any period shorter than that. Thus the 
only purpose of incorporating Rule 100 was to provide terminus 
ad quem upon expiry of which the Committees automatically 
stand decommissioned. Nothing more is to be read into this 
Rule. By fixing a terminus point for the Committees under Rule 
100, does it mean that the Bar Council cannot prematurely 
reconstitute its Committees as and when it deems appropriate? 
This is precisely the question, which needs to be explored next.  
 
6. 
 
Lets first examine what is the status of the 
Committee. All functions of the Pakistan Bar Council are 
described in Section 13 of the Legal Practitioners and Bar 
Councils Act, 1973. Section 15 of the Act read with Rule 86 of 
the Pakistan Legal Practitioners and Bar Councils Rules, 1976 
empowers the Bar Council to constitute Committees in order to 
entrust them the tasks that fall within the province of the Bar 
Council. So the Committees are various bodies of persons whose 
members are merely the delegates chosen by the Bar Council 
from amongst its members to carry out certain assignments on 
its behalf. The Committees being instruments of the Bar 
Council, any matter or proceedings pending before a Committee 
can be withdrawn by the Bar Council and disposed of by itself. 
This is evident from Rules 86 & 86-A(iii). For ease of 
comprehension this relationship is to be understood as being 
similar to that of a principal and agent. The Bar Council being 
CIVIL PETITION NO. 3345 OF 2016 
7
the principal body, its satisfaction with regard to the functioning 
of its Committees has to be kept paramount while dealing with 
the issue in hand.  
 
7. 
 
A situation may arise where the Bar Council realizes 
that a Committee is not functioning the way it thought it would 
and likes to revisit its decision with regard to the composition of 
Committee’s membership. Additionally, as a Committee has no 
power of its own to punish its members for disorderly conduct, 
its only recourse being to report the matter to the parent body 
i.e. the Bar Council to take corrective measures. A genuine need 
therefore may arise to replace all or some of the chosen 
members of a Committee on account of neglect of duty or 
violation of Bar Council’s mandate or for any other reason. To 
take such corrective measure, the only option left with the Bar 
Council is to reconstitute the Committees even though their 
tenure had not expired. It is not hard to imagine two distinct 
situations to legally co-exist, one fixing the maximum tenure for 
an office as provided by Rule 100 and at the same time the other 
enabling premature termination of such tenure. So existence of 
the first situation does not ipso facto eliminate the existence of 
the second. The co-existence of these two distinct situations, 
therefore, does not create any contradiction. To further this 
point, the principle laid down in Section 16 of General Clauses 
Act can be referred with considerable advantage. It lays down 
the principle of general law that where a power confers any 
office on a person then the authority also has the power to 
CIVIL PETITION NO. 3345 OF 2016 
8
remove him from that office even if his tenure has not expired. 
Thus Section 16 furnishes a general doctrine that ‘a power to 
appoint includes the power to remove’. Sir John Woodroffe in 
Chapter VI of the 6th Edition of his book ‘Law relating to 
Receivers’  had elaborated the exercise of such power by stating 
“The power to terminate flows naturally and as a necessary 
sequence from the power to create………It is a necessary adjunct 
of the power of appointment and is exercised as an incident to, or 
consequence of, that power; the authority to call such office into 
being necessarily implying the authority to terminate his function 
when their exercise is no longer necessary, or to remove the 
incumbent for an abuse of those functions or for other cause 
shown, …..”. So mere fixation of term of an office does not 
necessarily mean that the possibility to prematurely terminate 
such term stands ruled out. In case it is held that Bar Council 
has no such power, the only other option left with the Bar 
Council would be to remain helpless, do nothing and let the 
affairs of the Committee be, till the new Bar Council is elected. 
This could not have been intended by the Legislature. The power 
to reconstitute its Committees exists and always will in the 
hands of the Bar Council. Now the premature termination of any 
office can be brought about either after fulfilling certain 
conditions that are prescribed by law or it can be done with 
absolute authority. In case the law provides that certain 
conditions are to be first met then the termination would 
become effective only after the requisite conditions are fulfilled. 
Where no preconditions are attached by law for the exercise of 
CIVIL PETITION NO. 3345 OF 2016 
9
such power, as in the case of a principal and his agent (unless 
agency is coupled with interest), premature termination of the 
tenure of an office can be brought about instantaneously. 
Hence, subject to fulfilling the conditions for removal, if any 
prescribed by law, the power to prematurely terminate an office, 
such as that of the Committee members, who exercise delegated 
powers, nevertheless exists in the hands of the Bar Council that 
created it. It is therefore not legally tenable to maintain that 
simply because Rule 100 has made the term of the Committees 
co-terminus with the term of the Bar Council or any other term 
has been fixed by the Bar Council under Rule 100 at the time of 
creating them, the same cannot be reconstituted and shall 
remain absolutely immune from Bar Council’s interference till 
their whole term expires.   
 
8. 
 
When the Bar Council reconstituted its Committees 
in its meeting held on 03.09.2016 by exercising majority votes, 
all that it did was that it withdrew its own delegated authority 
from certain members of the Committee and entrusted it to 
others. No provision of the Act or the Rules requires that an 
opportunity of hearing was to be first given to a member of the 
Committee which the Bar Council intended to prematurely 
replace. Not even a notice period was envisaged to be given to 
the member sought to be removed from the Committee before 
induction of a new member in his place. The Committees of the 
Bar Council exercise delegated authority and the power to 
delegate an authority includes power to withdraw such 
CIVIL PETITION NO. 3345 OF 2016 
10
authority. In other words it can be said ‘What the Bar Council 
giveth, the Bar Council can taketh away.’ A Committee, 
therefore, can be discharged in the same manner, it was 
established. All that is required is a majority vote (Rule 96). That 
is the only requirement which the Bar Council has to fulfill. It 
may be pointed out that this power of the Bar Council to 
reconstitute its Committees is not meaningless. It is intended 
not to make withdrawal of authority by a principal from its 
agent questionable in a Court of law. So the security of tenure, 
insofar as membership in a Committee is concerned, is out of 
the equation. Only the members in their capacity as members of 
the Bar Council enjoy security of tenure who cannot be removed 
from the membership of the Bar Council unless they stand 
disqualified in the circumstances narrated in Section 11C read 
with Section 11B of the Legal Practitioners and Bar Council Act, 
1973. As for the members of a Committee chosen by the Bar 
Council to exercise delegated authority are concerned, there 
exists no legal basis for them to claim that they possess a vested 
right for their continuance on the Committee against the will of 
the parent body that created it and resist their premature 
removal from the membership of the Committee in disregard of 
the majority decision. It can be said that the Committees live by 
majority vote and die by majority vote. The Bar Council being 
the principal body, whose satisfaction is to be kept paramount, 
simply requires majority vote to make changes in the 
membership of its Committee, which power it exercised in its 
meeting held on 03.09.2016. In order to make premature 
CIVIL PETITION NO. 3345 OF 2016 
11
changes in the composition of Committees, the Bar Council does 
not even need to suspend the provisions of Rule 100 by invoking 
Rule 185. If that was done in the present case or on couple of 
occasions in the past, it could only be termed as something 
done out of abandoned caution as the purpose of incorporating 
Rule 100 in the Legal Practitioners and Bar Councils Rules, 
1976, as already discussed in detail, is altogether different.  
 
9.  
 
To sum up, Rule 100 of the Legal Practitioners and 
Bar Councils Rules, 1976, cannot be interpreted so as to tie the 
hands of the Bar Council and render it so powerless that it 
cannot reconstitute its Committees as and when deemed 
appropriate. Committee is a body that exercises authority 
originally vested in the Bar Council under Section 13 of the Act, 
which is delegated to the Committees through the mandate of 
law (Section 15 and Rule 86) or through a decision of the Bar 
Council itself. Hence the members of the Committees simply 
hold office in the Committees during the pleasure of the Bar 
Council. In its capacity as its principal, the Bar Council has 
inherent power to decide in an appropriately convened meeting 
to reconstitute its Committees (which in the present case was 
not done). In exercise of such power, it may on its own choose to 
give reasons though it is not obliged by law to do so. Rule 100, 
therefore, cannot be used as a shield to prevent the Bar Council 
from exercising its power to withdraw its delegated authority 
from a set of Committee members and entrust it to another.  
 
CIVIL PETITION NO. 3345 OF 2016 
12
10. 
 
In view of what has been discussed above, this 
petition is dismissed and leave refused. Let the directions 
contained in paragraphs 24 and 25 of the impugned judgment 
be given effect to.  
 
 
 
JUDGE 
 
 
JUDGE 
 
 
JUDGE 
 
Islamabad, the  
Announced on ______________ by Hon’ble Mr. Justice Faisal Arab 
 
Approved For Reporting 
Khurram 
 
 
CIVIL PETITION NO. 3345 OF 2016 
13
SH. AZMAT SAEED, J.- I have had the 
privilege of examining the judgment of my learned 
brother Mr. Justice Faisal Arab dismissing the 
instant Civil Petition. I agree with the conclusions 
drawn, however, I may add my own reasons.  
2. 
 
Section 15 of the Legal Practitioners & 
Bar 
Councils 
Act, 
1973, 
pertains 
to 
the 
Committees of the Pakistan Bar Council. The said 
provision reads as follows: 
 
“15. Committees of the Pakistan Bar 
Council.—(1) The Pakistan Bar Council 
shall constitute the following Committees, 
namely:-- 
 
 
 
(a) 
a disciplinary Committee consisting of 
a Judge of the Supreme Court nominated 
by the Chief Justice of Pakistan, who shall 
be its Chairman, and four other members 
elected by the Council from amongst its 
members: 
 
 
 
Provided that the Attorney-General for 
Pakistan shall not be a member of the 
disciplinary Committee; 
 
 
(b) 
 an executive Committee consisting of 
seven members elected by the Council from 
amongst its members; and  
 
 
(c) 
an enrolment Committee consisting of 
a Judge of the Supreme Court nominated 
by the Chief Justice of Pakistan, who shall 
be its Chairman, and two other members 
elected by the Council from amongst its 
members. 
CIVIL PETITION NO. 3345 OF 2016 
14
 
 
(2) 
The 
Pakistan 
Bar 
Council 
may 
constitute from amongst its members such 
other 
Committees, 
including 
a 
legal 
education Committee, as it may deem 
necessary 
for 
the 
performance 
of 
its 
functions 
under 
this 
Act, 
and 
may 
authorize any such Committee to co-opt as 
its 
members 
any 
other 
persons, 
no 
exceeding such number as the Council may 
determine. 
 
 
(3) 
The Chairman of every Committee 
shall be entitled to vote and, in case of 
equality of votes among the members of the 
Committee, shall have a second vote.” 
 
A bare reading of the above-said provisions 
reveals that two sets of Committees are envisaged; 
one as mentioned in sub-section (1) i.e. (a) 
disciplinary Committee, (b) executive Committee, 
and (c) enrolment Committee; and second set 
pertains to the Committees under sub-section (2), 
reproduced herein above. It is obvious that the 
Members of the first set of Committees mentioned 
above are elected, while with regard to the second 
set of Committees referred to in sub-section (2), 
no requirement of electing its Members is 
mentioned in the said provision. 
CIVIL PETITION NO. 3345 OF 2016 
15
3. 
 
The first set of Committees mentioned in 
sub-section (1) exercised statutory powers as 
mentioned therein while the second set of 
Committees referred to sub-section (2) exercised 
powers as may be delegated by the Bar Council. 
4. 
 
An elected Office whether Constitutional 
or Statutory as a general principle of law is 
effective for the tenure as prescribed in the 
Constitution or the Statute, as the case may be. A 
person so elected can only be removed from Office 
in 
accordance 
with 
the 
provisions 
of 
the 
Constitution or the Statute under which he was 
elevated, be it by a vote of no confidence 
impeachment recall or otherwise. No general 
powers envisages in the Electors to unseat such 
elected officials otherwise than the procedure as 
provided in the Statute applicable.  
5. 
 
In the instant case, the life of the 
Committee is determined by Rule 100, which is 
reproduced hereunder for ease of reference: 
 
“100. 
The 
term 
of 
every 
committee shall be the same as 
CIVIL PETITION NO. 3345 OF 2016 
16
that of the Council itself unless 
the 
Bar 
Council 
when 
constituting 
the 
committee 
provides otherwise.” 
  
 
The aforesaid Rule makes it clear and 
obvious that the life of the Committee cannot 
extend beyond the life of the Bar Council by 
electing the same. However, the Bar Council has 
been empowered to fix the tenure of the 
Committee at the time of constituting the same. In 
the circumstances, the minimum tenure of the 
Committee is not fixed by the Statute but by the 
Bar Council and such power is to be exercised 
while constituting the Committee. Such power 
once exercised or not exercised is not exhaustive 
and there is nothing to prevent the Bar Council 
from re-exercising of such power in terms of the 
principle laid down in Section 14 of the General 
Clauses Act, 1897.  
6. 
 
The reasons adopted by my learned 
brother Mr. Justice Faisal Arab, would obviously 
hold 
true 
with 
regard 
to 
the 
Committees 
CIVIL PETITION NO. 3345 OF 2016 
17
constituted or rather reconstituted under Section 
15(2) ibid. 
 
 
 
 
 
 
 
 
 
Judge  
CIVIL PETITION NO. 3345 OF 2016 
18
 
UMAR ATA BANDIAL, J. – The petitioners and the 
respondents No.3 to 22 are Advocates of this Court who are also elected 
members of the Pakistan Bar Council (“Council”). The Council performs 
its functions and duties through several Committees having members that 
are elected by the Council. Each of the petitioners is the elected Chairman 
of one of the Committees constituted by the Council. They challenge the 
judgment dated 13.10.2016 passed by a learned Division Bench of the 
Islamabad High Court which holds that the term of the Committees 
elected by the Council is terminable by the majority vote of the Council. 
However, since the Council had on 03.09.2016 voted for the reconstitution 
of all its Committees without notice in the agenda for that meeting, 
therefore, the learned High Court has remanded the said matter of 
reconstitution of the Committees to the Council for reconsideration in a 
meeting of the Council properly convened for the purpose.  
2.  
 
The petitioners maintain that the Legal Practitioners & Bar 
Councils Act, 1973 (“Act”) read with Pakistan Legal Practitioners & Bar 
Councils Rules, 1976 (“Rules”) framed pursuant to the Act envisage a 
term of five years for the members of the Committees constituted by vote 
of the majority of the Council on 25.01.2016. Consequently, the impugned 
judgment has seriously erred by upholding the purport of the majority of 
the Council on 03.09.2016 to prematurely dissolve and reconstitute all 
existing Committees of the Council barely eight months after they were 
elected.  
3. 
 
The Council was first constituted in the year 1973 under the 
provisions of the Act. At that time the Act also envisaged four Provincial 
Bar Councils. Subsequently, by an amendment in the Act made in the year 
CIVIL PETITION NO. 3345 OF 2016 
19
2014, the Islamabad Bar Council was also added at the tier of the 
Provincial Councils. Under Section 4 of the Act:  
“The term of every Bar Council shall be five years beginning on 
the first day of January following the general elections to the 
Provincial Bar Councils and Islamabad Bar Council; at the end of 
each term the members of the Bar Council shall cease to hold 
office.” (emphasis supplied).   
4. 
 
The Council consists of 23 Members (section 11) who are 
elected on the basis of a single transferable vote by the members of the 
Provincial Bar Councils and the Islamabad Bar Council. The Attorney 
General for Pakistan is the ex-officio Chairman of the Council. The 
members of the Council elect a new Vice-Chairman in the month of 
January every year [section 12(3)]. The Vice Chairman is the executive 
head of the Council having functions and duties specified in Rule 85: 
“85. Functions and duties of a Vice-Chairman.  
(a)  
In the absence of a Chairman the Vice-Chairman shall 
exercise the powers and the duties of a Chairman.  
(b)  
He shall be responsible for co-ordinating the functions of 
all the Committees of a Bar Council.  
(c)  
He shall exercise control over the employees of a Bar 
Council and shall be responsible for its smooth running.  
(d)  
He shall exercise control over the functionaries of a Bar 
council.” 
5. 
 
It is evident that the Vice Chairman of the Council has a 
supervisory and coordinating role whilst the functions and duties of the 
Council, inter alia, enumerated in Section 13, are performed by several 
Committees having members elected by the Council (Section 15 and Rule 
86). Three of such Committees have statutory force and are of a 
permanent character. These are the Disciplinary Committee headed by a 
Judge of the Supreme Court having four members elected by the Council 
from amongst its members; the Enrolment Committee chaired by a Judge 
of the Supreme Court having two members elected by the Council from 
amongst its members; and the Executive Committee consisting of seven 
CIVIL PETITION NO. 3345 OF 2016 
20
members elected by the Council from amongst its members. The Council 
is empowered to constitute such other Committees from amongst its 
members, including a Legal Education Committee, as may be necessary 
for the performance of its functions. The Act makes fairly detailed 
provisions in respect of the powers and proceedings of the Disciplinary 
Committee whose decisions are appealable before the Supreme Court 
(Section 48). Likewise for the Enrolment Committee which is the final 
authority for enrolment of Advocates of the High Courts (Section 32). The 
Act also constitutes a Disciplinary Tribunal (Section 42) headed by a Judge 
of the Supreme Court and having two members of the Council elected for 
the purpose. The formation of the other Committees (presently sixteen) 
and disposal of matters regarding management of the Council and the 
conduct of its affairs are also done by the majority vote of the Council 
under the Rules framed by the Council in exercise of power conferred by 
Section 55 of the Act.  
6. 
 
Section 55(f) of the Act envisages rules to be framed on the 
subject of “the constitution and functions of any Committee of the 
Pakistan Bar Council and the term of the office of the members of any 
such Committee.” In exercise of said statutory authorization by Section 
55(f) of the Act, the Council has framed Rule 100 which provides as 
follows:  
“100. 
The term of every Committee shall be the same as that of 
the Council itself unless the Bar Council when constituting the 
Committee provides otherwise.” (emphasis added)        
7. 
 
It is contended by the learned counsel for the petitioners that 
Section 4 of the Act provides for the term of the Council to be five years 
and for the members of the Council to hold their office until the end of 
CIVIL PETITION NO. 3345 OF 2016 
21
such term. Thus, the terms of the Council and of its members are co-
extensive. It is argued that Rule 100 which is framed in exercise of power 
under Section 55(f) to fix “the term of office of the members of any such 
Committee” adopts the logic of Section 4 of the Act by treating the term of 
the Committees and their members to be coterminous, unless the Council 
consciously decides to shorten the members’ tenure by providing 
otherwise. In the present case, the Council elected all its Committees on 
25.01.2016 without limiting the term of office of their members in the 
manner envisaged by Rule 100. Accordingly, it is argued that the term of 
office of the members of all Committees extends until January, 2021.  
8. 
 
On the other hand, learned counsel for the respondents have 
emphasized that Rule 100 specifies merely the term of every Committee 
and not the term of office of its members. All decisions of the Council are 
taken by majority vote recorded by show of hands (Rule 96). According to 
Rule 94, the majority of total members of the Council can transact any 
business with the permission of the Chair even if it is not listed on the 
agenda. The Committees are answerable to the Council under Rule 86A(i) 
whereby the minutes, proceedings and resolutions adopted by the 
Committees must regularly be laid before the Council for its approval. 
Rule 86A(ii) epitomizes the majoritarian principle of governance of affairs 
of the Council whereby the Council may of its own motion or otherwise 
revise or issue directions to a Committee, review any proceedings taken, 
order passed or any decision made by such Committee of the Council. 
According to Rule 86A(iii), the Council may, if so inclined, withdraw any 
matter or proceedings pending before a Committee and dispose of the 
same itself. In the foregoing background, it is argued that the members of 
the Committees are agents of the Council who have not been assured a 
CIVIL PETITION NO. 3345 OF 2016 
22
fixed term of office. Whereas the Committees continue to function for five 
years, their members can be removed, changed or shuffled by the Council 
at any time to improve performance of the functions and duties of the 
Committees.        
9. 
 
The minutes of the meeting of the Council held on 03.09.2016 
record that all twenty Committees of the Council and its Disciplinary 
Tribunal were reconstituted by majority vote of the Council. These include 
the three statutory Committees, namely, the Disciplinary Committee, 
Enrolment Committee and Executive Committee, envisaged in Section 15 
of the Act and also the Disciplinary Tribunal constituted under Section 42 
of the Act. Alongwith six Appeals Committees for the Provinces and the 
Capital Territory, composition of ten other Committees was changed. As a 
result eleven members of the Council who were the elected members of 
the existing Committees and the Tribunal were replaced by other eleven 
members who had previously been excluded from membership and/or 
participation in all such fora. The said sweeping change in the membership 
of all twenty Committees of the Council was made without assigning 
cause, fault or reason.  
10. 
 
To resolve the dispute regarding the validity of the action by 
the Council to reconstitute all its Committees and Disciplinary Tribunal, it 
became necessary for us to inquire the background of the differences 
between the parties.  It transpires that the majority of votes in the Council 
has shifted to the erstwhile opposition group in the Council. As a result of 
the impugned action, members of the erstwhile opposition group have 
been elected as members of all the Committees of the Council thereby 
excluding the previous members thereof. The Council has twenty three 
elected members. The impugned reconstitution of the Committees and 
CIVIL PETITION NO. 3345 OF 2016 
23
Disciplinary Tribunal of the Council was accomplished on 03.09.2016 by a 
majority of twelve members of the Council by invoking the Council’s 
power under Rule 185 to suspend Rule 100 reproduced above. Rule 185 
provides as follows: 
“185. The Pakistan Bar Council, may by a resolution, passed by it 
in its meeting, suspend wholly or partly, any Rule for such period 
and subject to such conditions, as it may deem fit and expedient.” 
(emphasis supplied) 
11. 
 
It is a matter of fact that the Council did not specify any 
shorter term for its Committees at the time of their constitution. According 
to the express provision of Rule 100, the term of the Committees last 
during the term of the Council. The petitioners have objected that Rule 185 
cannot be invoked for suspending a substantive provision of the Rules 
which confers a right upon the members of the Committees of the Council 
to a fixed term of office as contemplated by Section 55 (f). It is a power 
meant for removing difficulties, inconsistencies and procedural obstacles 
blocking an emergent action by the Council that is otherwise in 
accordance with law.  
12. 
 
The respondents reject such objection for three reasons. 
Firstly, that nothing in the Act or the Rules bars the reconstitution of the 
Committees or the removal of their members. Secondly, the conduct of 
affairs of the Council is squarely vested in the hands of the majority in the 
Council which can reconsider its previous decisions, inter alia, under Rule 
98; and thirdly, that any fixed term of office claimed by the petitioners 
under Rule 100 is revocable by the Council under its power derived from 
Section 21 of the General Clauses Act, 1897. Section 21 ibid recognizes a 
competent authority to, inter alia, rescind rules, bye-laws, notifications or 
CIVIL PETITION NO. 3345 OF 2016 
24
orders that have earlier been issued by it. For the sake of convenience, 
Section 21 ibid is reproduced below: 
“21. Power to issue, to include power to add to, amend, vary or 
rescind notifications, orders, rules, or bye-laws - Where, by any 
Central Act or Regulations, a power to issue notifications, orders, 
rules, or bye-laws is conferred, then that power includes a power, 
exercisable in the like manner and subject to the like sanction and 
condition if any, to add to, amend, vary or rescind any 
notifications, orders, rules or bye-laws so issued.” 
13. 
 
The arguments rendered by the learned counsel for the 
contesting parties have been heard and considered carefully.  
14. 
 
Disregarding the personal or political differences, if any, 
between the members of the Council, there is a legal lacuna in the Act and 
the Rules that possibly represents the true origin of the dispute between 
the parties. Neither the Act nor the Rules make any provision for removal 
from office of an elected Chairman or member of a Committee of the 
Council by any means whatsoever. Section 11(c) of the Act merely 
provides for grounds for cessation of membership of the Council. These 
grounds include: appointment to an office of profit in the service of 
Pakistan; suspension or removal from practice on the ground of 
professional misconduct; the incurrence of disqualification on account of 
dismissal or removal from the service of Government or of a public 
corporation; conviction for an offence of moral turpitude; declaration of 
being a tout or an undischarged insolvent. However, both the Act and the 
Rules do not address the matter of cessation of membership of 
Committees or the Disciplinary Tribunal. The consequences of loss of 
confidence by the Chairmen and members of the Committees of the 
Council 
or 
their inefficiency, 
incompetence, 
misconduct 
in 
the 
performance of their duties and functions are altogether ignored. Hence, 
CIVIL PETITION NO. 3345 OF 2016 
25
no impeachment, recall or vote of no confidence mechanism is available in 
the Act or the Rules for authorizing remedial action by the Council. This is 
notwithstanding the fact that the conduct of affairs of the Council are 
governed by democratic norms under the Act and the Rules. As a result of 
the silence of the Act and the Rules on the subject of accountability for loss 
of confidence, commission of default or misconduct by the Chairmen and 
members of the Committees of the Council, the impugned action 
removing existing Chairmen and members of the Committees is devoid of 
express legal cover under the Act and the Rules. Therefore, the 
respondents have resorted to justify the impugned action by suspending 
Rule 100 and are relying on external aids like powers conferred by the 
General Clauses Act, 1897 and the democratic principle of majoritarian 
rule.  
15. 
 
In the above background, the primary issue highlighted in 
the submissions made by the learned counsel for the parties is whether the 
Council is rendered powerless for the claimed term of five years to touch 
any Chairman or member of a Committee even though he has lost 
confidence of the House or he has committed default or misconduct in the 
performance of his duties. 
16. 
 
In order to address the said question, the route adopted by 
the respondent majority in the Council to deal with the situation through 
the impugned action requires examination. As a first step, the agenda 
dated 29.08.2016 circulated for the meeting of the Council on 03.09.2016 
did not include any item regarding the reconstitution of the Committees 
of the Council. The additional agenda circulated on 02.09.2016 also did not 
include the said item. It seems, however, that later in the day on 
02.09.2016 a requisition for the reconstitution of all Committees of the 
CIVIL PETITION NO. 3345 OF 2016 
26
Council was filed by eleven members of the Council before its Chairman, 
learned Attorney General for Pakistan, who directed the same to be placed 
before the House in its meeting already scheduled for 03.09.2016. At the 
meeting, the House firstly proceeded to exercise its power under Rule 185 
to suspend the operation of Rule 100 till the end of the meeting. No reason 
for suspending the said rule is recorded in the minutes. Thereafter, with 
the permission of the Chair the majority of the total members of the 
Council exercised power under Rule 94 to take up and transact business 
outside the agenda of the meeting. Following that the matter of wholesale 
reconstitution of the Committees was considered by the Council which 
voted in new members thereof through the impugned action.  
17. 
 
It may be observed that Rule 100 mandates that Committees 
of the Council shall have a term of five years except where the Council 
expressly specifies a shorter term whilst constituting such Committees. 
Suspension of Rule 100 by the majority of the Council purportedly 
arrested the term of the Committees under the said rule which was 
implausibly presumed to authorize the election/reconstitution of new 
Committees. Generally the power conferred on a competent authority to 
suspend or relax rules is construed narrowly because it permits deviation 
from the applicable law. Accordingly, any condition laid down in the 
enabling law for suspending rules is enforced strictly. The power is 
construed to advance the purpose and enforce the provisions of the 
enabling legislation. Reference is made to Rule 288 of the Rules of 
Procedure and Conduct of Business in the National Assembly, 2007 which 
permits “Suspension of Rules” by the Speaker. However, the ground for 
invoking this power is to overcome difficulty or inconsistency in the 
application of the said Rules. The object of the said power is to facilitate 
CIVIL PETITION NO. 3345 OF 2016 
27
the enforcement of the Rules of Procedure. Likewise, Section 246 of the 
Income Tax Ordinance, 2001, empowers the Federal Government to make 
orders consistent with the provision of the Ordinance in order to remove a 
difficulty in the enforcement of the provisions of the Ordinance. The same 
principle is expressed by Section 24 of the Civil Servants Act, 1973. 
Suspension of Rules cannot be resorted for achieving a purpose 
extraneous to applicable law but for promoting the object of or for the 
proper application of such law.  
18. 
 
In the present case, no difficulty, or for that matter, 
inconsistency in the application of the Act or the Rules is noted by the 
Council to justify the exercise of its power under Rule 185 to suspend Rule 
100 of the Rules. In the case of Mr. Fazlul Quader Chowdhry  vs.  Mr. 
Muhammad Abdul Haque (PLD 1963 SC 486), the exercise of power by 
the President to make adaptation in the provisions of the Constitution in 
order that the Constitution as a whole should be brought into force was 
questioned. In that context, the meaning of the expression “necessary and 
expedient” occurring in Article 224(3) of the Constitution of 1962 for 
making such adaptation came under review of this Court. It was held that 
the power was meant for the purpose of removing a difficulty of one of 
the expressed kinds and not to achieve a purpose that was not envisaged 
in the Constitution. Justice S.A. Rehman (as his lordship then was) observed 
as follows: 
“Clause (3) of Article 224 does not confer unfettered power on the 
President to make any amendments that he might choose, in the 
Constitution. The power is qualified by the condition that it 
should be exercised for the purpose of removing any difficulties 
that may arise in bringing the Constitution or any of its provisions 
into operation. Out of these words, a power cannot be spelt out to 
alter the Constitution itself so as to change it, for instance from the 
Presidential form which it clearly contemplates, to the 
CIVIL PETITION NO. 3345 OF 2016 
28
Parliamentary form. The Constitution as a whole has to be 
brought into force and if any difficulty arises in the machinery of 
enforcement, it could certainly be removed by an order of the 
President, within the specified time, but the word ‘difficulty’ 
could not receive such a large connotation as to comprehend 
within its scope, a drastic alteration such as would revolutionize 
the scheme of the Constitution itself. …”   
 
19. 
 
No provision of the Act or the Rules envisages the 
removal of members of the Committees of the Council or the 
reconstitution of such Committees at all, let alone at will. Therefore 
the suspension of Rule 100 by the Council did not promote nor 
remove any difficulty in the enforcement of any specific provision of 
the Act or the Rules. No ground for dissatisfaction with the 
Chairmen and members of all Committees was disclosed or 
discussed in General Meeting of the Council on 03.09.2016. In the 
circumstances, the Council failed to record any reason for deeming it 
“fit and expedient” to suspend Rule 100. It is plain that suspensory 
action by the Council cannot be taken arbitrarily or for a purpose 
extraneous to the enforcement of the provisions of the Act and the 
Rules. From the record, it appears that the Council considered term 
of office provided in Rule 100 to block the removal of the existing 
Chairmen and members of the Committees. Therefore, Rule 185 was 
invoked by the Council to overcome that hurdle without realizing 
that suspension of Rule 100 could not remove the Committees nor 
authorize the election of new Committees. These actions make out 
the suspension of Rule 100 to be extraneous and unfair. Be that as it 
may, any reasonable construction of the Act and the Rules cannot 
support the suspension of Rule 100 by the Council.  
CIVIL PETITION NO. 3345 OF 2016 
29
20.  
 
Dilating further on the meaning and effect of Rule 100, it 
may also be observed that Section 4 of the Act stipulates the term of the 
Council as being five years. That term is then expressed by Section 4 to be 
the period for which a member of the Council shall hold office. Section 
55(f) of the Act contemplates specifically for the Rules to provide for “the 
term of the office of the members of any such Committee.” Rule 100 
adopts the method and logic of Section 4 of the Act to indicate the term of 
a Committee to be five years except when its term is expressly curtailed by 
the Council at the time of constituting the same. Any reduction in the term 
of a Committee is intended to be an express act or specific provision. Such 
curtailment cannot in terms of Rule 100 be presumed nor be deferred for 
later provision. Moreover, the meaning and effect of Rule 100 is to be 
construed in the light of its enabling provision, namely, Section 55(f). The 
statutory mandate in Section 55(f) for the Rules to provide for the “term of 
the office of the members of any such Committee” means that the 
expression “Committee” occurring in Rule 100 be construed to include 
“members of any such Committee.” A Committee is a non-existent entity 
without its members who are an integral part thereof. This integrality 
between the collective body and its members is also reflected in the 
provisions of Section 4 of the Act, by the term of the Council being made 
coterminous with the term of its members. A joint reading of Section 55(f) 
with Rule 100 shows an identicity of tenures of both the Committees and 
their members. The interpretation advanced by the respondents that Rule 
100 provides merely for the life of the Committees but does not deal with 
the term of office of their members is therefore theoretical. It ignores that 
the empty shell of a Committee is meaningless. In recognition of this fact, 
Section 55(f) empowers the Council to fix the term not of the Committees 
CIVIL PETITION NO. 3345 OF 2016 
30
but of their members. Indeed, Section 15 mentions at least three 
Committees having statutory terms which cannot be adjusted by the 
Council. Clearly, therefore, Rule 100 is dealing with the term of members 
of Committees. This construction is consistent with reason and also 
explains the intention of the Council on 03.09.2016 to suspend Rule 100 
before reconstituting its Committees.  
21.  
 
In the foregoing background, the learned counsel for the 
parties have addressed the Court on the precedents for reconstitution of 
the Committees of the Council occurring over the period of 43 years since 
the promulgation of the Act. The learned counsel candidly acknowledge 
that the absence of any mechanism in the Act and the Rules for removal of 
the elected Chairmen and members of the Committees of the Council is a 
deliberate omission by the legislature. The members of the Bar constitute 
one community, united by the principle to promote the rule of law in the 
country and to establish and maintain the highest standards of excellence 
and ethics in the profession of law. Accordingly, in the matters of internal 
management of the Council, its members are expected to and have risen 
above their personal differences to take unanimous decisions in the 
interest of harmony and sound management of the affairs of the Council. 
This includes the subject of reconstitution of Committees of the Council. 
Reference has been made by both sides to the proceedings of the 56th 
meeting of the Council held on 12.02.1987 at Lahore. Paragraph-8 of the 
minutes of the meeting records as follows: 
“8. 
Therefore, Mr. Abdul Haleem Pirzada, with permission of 
the chair, informed the meeting that to make re-adjustments the 
Members were unanimous to re-constitute the Committees of the 
Pakistan Bar Council and proposed the following list of 
reconstituted 
 
Committees. 
He 
further 
said 
that 
the 
Chairman/Members of the Committees previously constituted by 
CIVIL PETITION NO. 3345 OF 2016 
31
the Pakistan Bar Council in 1984, who were not maintaining their 
past positions had voluntarily agreed to quit and under the new 
arrangement would be deemed to have relinquished their 
Chairmenship/Membership.” (emphasis added). 
22. 
 
As a result of the above noted consensus, eleven Committees 
of the Council were reconstituted by agreement of all its members. It is 
contended that the spirit of understanding and harmony prevalent 
amongst members of the Council was disturbed long afterwards in the 
year 2008. The minutes of 177th (Requisitioned) meeting of the Council 
held on 23.08.2008 record that the existing Committees of the Council 
were reconstituted by the majority of the Council after overruling the 
objections based on Rule 100, and in the absence of any alleged cause or 
fault justifying their reconstitution. Again, the minutes of 193rd meeting of 
the Council held on 25.05.2012 show that certain members of the 
Committees were replaced by the majority of the Council. In this instance, 
the power under Rule 185 was exercised to suspend the operation of the 
Rule 100 before the members of the Committees were replaced. The same 
action was repeated in the 204th meeting of the Council held on 31.01.2013 
but without suspending the operation of Rule 100.  
23. 
 
So long as there was a spirit of consensus within the Council, 
the silence of the Rules did not prejudice action by the Council to ensure 
the confidence of and accountability before the Council on either count. 
However, it is clear from the recent precedents of the Council’s 
proceedings that a change has come about in the regulation of its internal 
affairs. The consensus necessary for unanimity has evaporated and groups 
have emerged within the fold of the Council. As a result the majority in 
the Council has asserted its legal authority and clout pursuant to, inter alia, 
Rules 86A, 91, 94 and 96 to 98. Undoubtedly, the principle of decision  
CIVIL PETITION NO. 3345 OF 2016 
32
by majority vote of members in quorum pervades the body of decisions 
and proceedings of the Council or its Committees as regulated by the Act 
and the Rules. The present case concerns the limits, if any, that check the 
power of the majority vote of the Council; in particular if such vote can 
override the Rules and rights conferred by the same.    
24.  
 
The significant feature about the office of the members and 
of Chairmen of the Committees of the Council is that these are all elected 
posts. One of the ordinary incidents of an elected office is that it bears a 
defined term. There may, however, be exceptions for example where an 
elected office may be held by its incumbent during the confidence of the 
House that elected him. The offices of the Prime Minister under Article 95 
of the Constitution and of the Chief Minister under Article 136 thereof can 
be retained by the respective incumbents so long as they have the support 
of the majority of the House that elected them. This rule is enshrined in 
the right to bring a motion of no confidence under the afore-noted Articles 
of the Constitution against the respective holders of the said offices. 
Similar provisions exist in provincial legislation in relation to the offices of 
heads of Local Governments. In the case of a fixed term of an elected office 
the incumbent may be removed through his impeachment on specified 
grounds by the competent House. This is reflected in the provision for 
removing the President under Article 47 of our Constitution.  
25. 
 
We have already noted that under, inter alia, Rule 86A, 91, 
94, and 96 to 98 of the Rules, the majority of total members in the Council 
has substantive powers to assume complete control of the affairs of the 
Committees, to reverse or undo their decisions and also the actions of the 
Council. It becomes crystal clear that the underlying ethos and basis 
furnished by the Act and the Rules for the constitution and working of the 
CIVIL PETITION NO. 3345 OF 2016 
33
Council and its Committees is majoritarian rule and democratic decision 
making. Rule by the chosen representatives of the electorate and the rule 
of law are the two fundamental pillars of a democratic order. These 
essential features of a democratic order were succinctly noted by this 
Court in Federation of Pakistan  vs.   Muhammad Nawaz Sharif (PLD 
2009 SC 644): 
“54.  
The Constitution of Pakistan provides for a 
democratic system of governance, “wherein the principles of 
democracy, freedom, equality, tolerance and social justice as 
enunciated by Islam shall be fully observed.” But democracy 
does not mean merely holding of periodical elections or a 
government by a political party having majority in the 
Parliament. It epitomizes the cherished values of freedom, 
democracy, due process and the rule of law. It encompasses 
a whole range of sociopolitical and economic rights. …” 
(emphasis added)  
26. 
 
In the eyes of the law the holder of an elective office has a 
different standing from an executive appointee. The former is the winner 
in a democratic process whilst the latter represents the choice of executive 
discretion. Executive appointments and action are, inter alia, subject to the 
provisions of the General Clauses Act, 1897; but elected office bearers 
cannot be recalled under executive orders unless expressly authorized by 
the law. By providing the afore-noted motions of no confidence and 
impeachment, our Constitution and the law install mechanisms for 
recalling electoral verdicts. These motions possess a certain degree of due 
process and fairness by expressly granting prior notice and hearing to the 
affected person before terminating his elected term. The conditions for 
election to an office, holding the same and removal therefrom are 
creatures of legislation. Motions of no confidence or of impeachment must 
be provided expressly by the law and cannot be presumed or imported 
CIVIL PETITION NO. 3345 OF 2016 
34
into the law. The absence thereof in the enabling law grants an 
uninterrupted term of office to the incumbent rather than conferring a 
naked power on the electorate/electoral college to repudiate at will or a 
whim the mandate of its confidence. 
27. 
 
In the present case, the reliance placed on democratic norms 
by the majority in the Council to justify their impugned action against 
elected members and Chairmen of the Committees may have legal force if 
their majority vote also had the backing of the law. This requirement 
stems from the fact that the right to elect a person or to remove  
him from office is a statutory right. In Hamida Begum  vs.  Provincial            
Election Authority (PLD 1966 Lahore 560), it is held that “a right to vote is 
not a common law right, but is a creation of the statute. A dispute as to casting of 
votes or other matters at an election must be decided under and in accordance 
with the enacted law.” To the same effect are dicta laid down in Asif Nawaz 
Fatiana  vs.  Walayat Shah (2007 CLC 610) and Muhammad Ibrahim 
Qasmi   vs.  Election Commission of Pakistan (PLD 2008 Peshawar 84). A 
lucid statement of the different facets of the said principle is made in 
Mohan Lal Tripathi  vs.  District Magistrate Rae Bareilly (AIR 1993 SC 
2042 at page 2045) as follows: 
“2.  
… But electing representatives to govern is neither a  
‘fundamental right’ nor a  ‘common law right’ but a special right 
created by the statutes, or a  ‘political right’ or ‘privilege’ and not 
a ‘natural’, ‘absolute’ or ‘vested right’. ‘Concepts familiar to 
common law and equity must remain strangers to Election Law 
unless statutorily embodied.’ Right to remove an elected 
representative, too, must stem out of the statute as ‘in the 
absence of a constitutional restriction it is within the power of a 
legislature to enact a law for the recall of officers’. Its existence or 
validity can be decided on the provision of the Act and not, as a 
matter of policy. … [T]he removal of the appellant by a vote of 
no-confidence by the Board which did not elect him was 
subversive of basic concept of democracy. Academically the 
CIVIL PETITION NO. 3345 OF 2016 
35
submission appeared attractive but applied as a matter of law it 
appears to have little merit. … In modern political set up direct 
popular check by recall of elected representative has been 
universally acknowledged in any civilised system. Efficacy of 
such a device can hardly admit of any doubt. But how it should 
be initiated, what should be the procedure, who should exercise 
it within ambit of constitutionally permissible limits falls in the 
domain of legislative power. … Therefore, the validity or 
otherwise of a no-confidence motion for removal of a President, 
would have to be examined on applicability of statutory 
provision and not on political philosophy. … The recall of an 
elected representative therefore, so long it is in accordance with 
law cannot be assailed on abstract notions of democracy.”  
The above mentioned principles were considered and applied in Partap 
Chandra Mehta  vs.  State Bar Council of Madhya Pradesh & others 
[(2011) 9 SCC 573] whilst determining whether Rule 122A of the Bar 
Council Rules of a State conferring the right of a no confidence motion on 
the members of the State Bar Council against their Chairman and Vice 
Chairman was ultra vires the parent law, the Advocates Act, 1961. The 
Indian Supreme Court rejected the challenge to the vires of the impugned 
rules. It held that so long as there was a legal provision controlling the 
motion 
of 
no 
confidence 
which 
avoided 
its 
arbitrariness 
or 
unreasonableness, such rule was intra vires the power of the State Bar 
Council to frame rules ‘to carry out the purpose of the Act’ (Advocate Act, 
1961). The conclusion drawn has relevance to the facts of the instant case 
and is reproduced below: 
“80.  
In face of the above enunciated principles, we are of the 
considered view that the concept of just cause and right of 
hearing, the features of common law, are not applicable to the 
elected offices where a person is so elected by majority in 
accordance with statutory rules. It would also have hardly any 
application to moving of a “no confidence motion” insofar as 
these are controlled by specific provisions and are not arbitrary 
or unreasonable. There is nothing in Rule 122A of the M.P. Rules 
that requires adherence to these two concepts when a motion of 
CIVIL PETITION NO. 3345 OF 2016 
36
no confidence is moved against a sitting Chairman/Vice-
Chairman. Of course, it does not imply that the action can be 
arbitrary or capricious and absolutely contrary to the spirit of the 
Rule. There is no dispute in the facts of the present case that 
majority of the members had passed the “no confidence motion” 
in the 16th Meeting of the State Bar Council on 16-04-2011.  
81. 
We are not able to accept the view taken by the High 
Court of Delhi in Bar Council of Delhi [Bar Council of Delhi  v. Bar 
Council of India, AIR 1975 Del 200] in saying that solely with the 
aid of the General Clauses Act, the power to elect would deem to 
include power to remove by a motion of no-confidence, 
particularly, with reference to the facts and circumstances of the 
instant case. The power to requisition a “no-confidence motion” 
and pass the same, in terms of Rule 122-A of the M.P. Rules, is 
clear from the bare reading of the Rule, as relatable to loss of 
faith and confidence by the elected body in the elected office-
bearer. We have already discussed in some detail and concluded 
that Rule 122-A of the M.P. Rules is not ulta vires the provisions 
of the Advocates Act, including Section 15.  …” 
28. 
 
Two established and admitted facts may be reiterated. 
Firstly, that the Rules framed in exercise of power delegated by Section 55 
of the Act do not make provision for the Council to impeach or pass a vote 
of no confidence against the Chairmen or members of the Committees. 
Secondly, in the present facts of the case Rule 100 envisages in mandatory 
words that the term of office of members of the Committees shall run co-
terminously with the term of the Council. This is because notwithstanding 
its one time power to fix a shorter term of the Committees at the time of 
constituting these, the Council did not do so, and thereby confirmed the 
full term of five years for such Committees. Consequently, it is a legal 
right of the Chairmen and members of the Committees that the tenure of 
their offices equals the full term of the Council. The excerpts of law 
reproduced above clarify that this right of elected officer bearers cannot be 
defeated by the majority in the Council without express authority under 
CIVIL PETITION NO. 3345 OF 2016 
37
the Rules. Therefore, resort to the suspension of Rule 100 or electing new 
Committee members or relying on democratic notions is inconsequential. 
Although the no confidence of the majority of the Council in the Chairmen 
and members of the Committees is duly expressed yet their vote and its 
result lacks the sanction and authority of law. It is, therefore, ineffective 
and invalid. The element of rule of law necessary for democratic 
governance and noticed in Muhammad Nawaz Sharif’s case (PLD 2009 
SC 644) requires that suitable amendment be made in the Rules to 
incorporate the right of the members of the Council to bring a motion of 
no confidence or of impeachment as may be deemed appropriate against, 
inter alia, members and Chairmen of the Committees.  
29.  
 
The above discussion refutes the argument of the learned 
counsel for the respondents that the Council has a residuary power under 
Section 21 of the General Clauses Act, 1897 to lawfully remove Committee 
Chairmen and members. It may be added that the said statute in general 
and in particular Section 21 thereof relate to the exercise of delegated 
authority by statutory functionaries. The settled law of the land denies 
any authority to statutory functionaries to take away accrued legal rights 
of affected persons. Reference is made to Alsamrez Enterprise   vs.  
Federation of Pakistan (1986 SCMR 1917), Zaman Cement Company 
(Pvt.) Ltd.  vs.  Central Board of Revenue (2002 SCMR 312) and Collector 
of Central Excise & Land Customs   vs. Azizuddin Industries Ltd. (PLD 
1970 SC 439). The term of offices of Chairmen and members of the 
Committees of the Council are their accrued legal right under Rule 100 
which cannot be divested by invoking the power under Section 21 ibid. 
CIVIL PETITION NO. 3345 OF 2016 
38
Equally other powers conferred by the General Clauses Act, 1897 are 
inapplicable.  
30. 
 
Having expressed the foregoing view, there remains a 
poignant question for consideration by the Court. It is undisputed that the 
Council is constituted by Statute and all its proceedings and actions are 
regulated and governed by democratic norms that are laid down in the 
Act and the Rules. It is also a matter of fact that the Council performs the 
bulk of its functions through the elected Committees which are governed 
by the same norms. Given that the procedure of review, reversal and 
disposal by the Council of matters pending before the Committees (Rule 
86A) is cumbersome and impracticable, there exists a serious lacuna in the 
regulation of the affairs of the Council. By the absence of a mechanism for 
impeachment or a vote of no confidence or recall otherwise in the Act or 
the Rules, the accountability of the Chairmen and members of Committees 
by the majority in the Council stands totally blocked.  To our minds, the 
elements of transparency in actions, the confidence of and accountability 
before the electorate are crucial for the functioning and development of 
democratic governance in any institution. This is more so the case with the 
Council which is created by statute and is the highest representative 
professional body of the legal community in the country which plays a 
pivotal role in the dispensation of justice by the Courts of law.   
31. 
 
In the foregoing perspective, the state of the present 
regulatory framework of the Council is in conflict with its underlying 
basis and ethos as envisaged by the Act and the Rules. In order to 
implement such underlying basis and ethos and to secure the rights of the 
members of the Council pursuant thereto, it is necessary that the Council 
CIVIL PETITION NO. 3345 OF 2016 
39
must in exercise of its power under Section 55 of the Act incorporate an 
appropriate mechanism within its Rules setting out the conditions on 
which the terms of the Chairmen and members of the Committees may be 
terminated by the members of the Council. An amendment in the Rules is 
therefore necessary for carrying out the scheme of the Act and for 
enforcing better democratic governance of the Council as contemplated by 
the Act and the Rules. The substantive terms of the amended rules are left 
to the able and experienced hands of the members of the Pakistan Bar 
Council who are all Advocates of this Court.  
32. 
 
However, in this regard, the Court is inclined to offer in the 
meantime certain guidelines for promoting confidence of the Council in its 
office bearers and for transparency and accountability in the discharge of 
their functions. There is precedent that guidelines were issued by the 
Court to advance the statutory scheme and objects of the Council in the 
case of Pakistan Bar Council  vs. Federation of Pakistan (PLD 2007 SC 
394); again to ensure transparency in functioning of public bodies 
guidelines were issued in Ghulam Rasool  vs.  Government of Pakistan 
(PLD 2015 SC 6). The fundamental basis of the Council requires that any 
contradictory lacuna in its framework be removed by express law. 
Accordingly, it is recommended that the requisite amendments be framed 
by the Council within a period of six months from the date of this 
judgment.  
33. 
 
It is further remarked that in case the Council fails to frame 
the requisite amended Rule(s) within the given timeframe, then it is 
observed that as a default measure, the presently elected members of the 
Committees and the Disciplinary Tribunal of the Council shall be deemed 
CIVIL PETITION NO. 3345 OF 2016 
40
to have a term of two years rather than five years. In other words, they 
shall upon the lapse of two years after their election to their offices be 
required to secure a fresh vote of confidence of the majority of the total 
members of the Council in order to retain their offices. At the said election 
of the Committees, the Council shall, if so inclined, have the opportunity 
to fix a shorter term of the Committees. The fresh elections for constituting 
the Committees and Disciplinary Tribunal of the Council shall accordingly 
be held in the month of January, 2018 on a date fixed by the Chairman of 
the Council.  
 
 
As a result, this petition is converted into an appeal and 
partly allowed in above terms with no order as to costs.  
  
               
                 
Umar Ata Bandial, J. 
CIVIL PETITION NO. 3345 OF 2016 
41
ORDER OF THE BENCH 
 
 
By majority of 2 to 1 (Umar Ata Bandial, J. 
dissenting), this Civil Petition is dismissed. 
 
 
 
 
 
 
 
 
 
 
Judge 
 
  
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
Judge 
Announced in open Court 
on ___________ at ____________  
Approved for Reporting 
 
 
 
 
 
 
 
Judge