2023 M L D 1260
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Muhammad Aamir Nawaz Rana, JJ
KAURA KHAN and another ---Appellants
Versus
The STATE ---Respondent
Criminal Appeal No. (s) 38 of 2020, decided on 16th November, 2022.
(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976 ---
----R. 166 ---Constitution of Pakistan, Arts. 4(1), 4(2)(a) & 10A ---Criminal trial --- Strikes by
lawyers causing delay in conclusion of trial ---Breach of Fundamental Rights of accused ---
Every advocate who had accepted a brief to attend the court could not subsequently refuse to
attend court because a boycott call was given by the Bar Association ---Courts were under an
obligation to hear and decide cases brought before them and could not adjourn matters
merely because lawyers were on strike otherwise it would tantamount to becoming a privy to
the strike ---No obligation on the part of the Court either to wait or to adjourn the case on
such count ---Speedy justice was the fundamental right of every litigant and cases appearing
on the board should not ordinary be adjourned on account of the absence of the lawyers
unless there were cogent reasons to do so ---Advocates were answerable for the consequences
suffered by their clients on account of non -appearance due to strike observed by the Bar
association ---Thus, the Courts were not bound either to wait or to adjourn the cases due to
non-appearance of the advocates on account of strike observed by the Association ---Duty of
the Judges was to proceed with a case during Court hours ---Courts should not surrender to
pressure tactics, boycotts or threats.
Jamat -i-Islami v. Federation of Pakistan PLD 2000 SC 111; Ex -Capt. Harish Uppal v.
Union of India (2003) (2 S.C.C. 45); Ch. Shamshair Ali v. Khalid Mahmood 2015 YLR 47
and United State in Cohens v. Verginia 19 US 264 (1821) rel.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Accused were
charged for committing murder of their colleague with the use of bricks ---Record revealed
that the occurrence in the case had taken place inside the house of one Mr. "G" and there was
no other house or shop situated adjacent to the house of occurrence ---Eye witnesses produced
by the prosecution were very closely related to deceased inasmuch as the complainant was a
brother of the deceased while the other witness was the real cousin of deceased ---Both the
alleged eye -witnesses were also chance witnesses and they had claimed to have been
attracted to the place of occurrence upon hue and cry of the deceased which did not appeal to
a prudent mind ---Instead of providing support to the ocular account the medical evidence
produced by the prosecution had gone a long way in creating dents in the case of
prosecution ---Medical evidence belied the ocular account inasmuch as in the Medico Legal
Certificate one sharp weapon injury had been found on dead body of deceased which had not
been explained by the eye -witnesses ---Admittedly, the occurrence in the case had taken place
inside the house of one Mr. "G", but he had not been produced and examined before the Trial
Court ---Leaving real brother in injured and helpless condition and proceeding to Police
Station for lodging of FIR was also unnatural and it created serious doubts in the prosecution
story ---Circumstances established that the prosecution had failed to prove its case against the
accused beyond reasonable doubt ---Appeal against conviction was allowed, in
circumstances.
Jamil Akhter Gajani, A.P.G. for the State.
Date of hearing: 26th October, 2022.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Appellants, Kaura Khan and Gul
Muhammad had allegedly caused multiple injuries to their colleague, namely Shah
Muhammad aged about 60 years with the use of bricks inside the farm -house of one Ghulam
Rasool Umrani, situated in the area of Police Station Baba Kot, District Naseerabad at 4:10
p.m. on 08.07.2019. They were booked in case FIR No. 12/2019 registered at Police Station,
Baba Kot on 08.07.2019 and after a regular trial, they were convicted by the learned
Additional Sessions Judge, Nasirabad at Dera Murad Jamali and sentenced under section
302(b), P.P.C. to suffer rigorous imprisonment for life. Hence the present appeal before this
Court.
2. The instant appeal was filed on 04.05.2020 and due to continuous absence of learned
counsel for the appellants, it could not proceed and notices were issued to the appellants
through Superintendent Central Jail Much on 25.3.2022 with directions to ensure the
presence of their counsel on next date of hearing and the case was adjourned to 16.09.2022.
Again on account of strike observed by Sibi Bar Association, the learned counsel for the
appellants abstained from appearance and case was adjourned to 26.10.2022. On such date
when the case was taken up for hearing, the Additional Registrar of this Court appeared and
produced a letter, addressed to the Honorable Chief Justice, which reads as under:
"Subject: INFORMATION ABOUT BLOCKAGE OF MAIN GATE.
With due respect it is to inform you, that at 8.10 a.m. this morning when I reached my
office, I saw that Muhammad Nasir Marri Advocate was standing in front of the main
gate of the court, and the gate is blocked by standing its car in front of the gate. He
did not allow the undersigned to enter the court. Due to his stoppage, the undersigned
entered from the second gate of the court premises which is only for the entry of the
Honorable Judges into the rest house.
Thereafter at 10:00 a.m., the undersigned again went to the main gate of the building
to assess the situation, and saw that the lawyers i.e Muhammad Nasir Marri Advocate,
Barkat Ali Khaskhaill Advocate, Muhammad Rasheed Advocate, Hunain Iqbal
Minhas Advocate, Jalil Lehri Advocate, Khursheed Anwer Khosa Advocate and many
more advocates have closed the main gate till now. And they are not allowing the
other lawyers as well as litigants to enter into the court building.
Submitted for information and kind perusal please.
Additional Registrar High Court of Balochistan Sibi Bench."
3. Considering the letter of the worthy Additional Registrar, grave situation arising out
of locking the main entrance of the court premises by some of the lawyers, continuous strikes
and consequential disruption of Judicial work in courts as well as difficulties faced by the
litigants, we are left with no option but to proceed with the cases in their absence, however
before dilating upon the merits of the case, following questions are required to be answered:
i) Whether any association of lawyers can observe strike or should a litigant suffer
penalty for his advocate boycotting the court pursuant to strike call made by the
association of which the advocate was a member?
ii) Whether the court is under obligation either to wait or to adjourn the case due to non -
appearance of the advocate who was engaged by a party on account of strike observed
by the Association? and
iii) Whether Bar Council or Bar Association can take action against the advocate who
refused to participate in the strike call with punitive action?
4. Love to life and properties is the basic instinct of every human being and our
Constitution also guarantees security of person, inviolability of dignity of man and the right
to acquire, hold and dispose of property in any part of the country. According to Socrates,
"The only good is knowledge and the only evil is ignorance." The members of the legal
fraternity being armed with the knowledge of law and Constitution play very important role
in the administration of justice, protection of fundamental rights of the people and upholding
the Constitution.
5. In our humble opinion, the advocates are soldiers in black coat and tie and are
professionals in the field of law and Constitution. In developing countries, particularly in our
country, being leading members of intelligentsia and civil society, lawyers are the voice of
downtrodden people and the society rightly expect of them ideal behavior and conduct. The
profession of advocacy is altogether different from other professions because what they do,
affects not only an individual but the whole society and administration of justice, which is
the foundation of a civilized society.
6. The legal profession has always been held in high esteem and its members have
played enviable role in the socio -political life of nation. The members of the legal fraternity
are the champions of civil rights of people and in recent past, the lawyers' movement for
restoration of judiciary against a dictator is the classic example of such struggle. During this
movement, they had to face social, financial and physical problems for a long time and their
families suffered as well. They were arrested and tortu red. On 12th May, 2007, they were
targeted and Fifty -five persons were mercilessly martyred and hundreds suffered bullet
injuries but they never gave up and stood besides the judiciary for the cause of justice and
upholding the Constitution. Undoubtedly, they are the frontline soldiers fighting for civil and
constitutional rights of the general public.
7. However, question arises as to whether they can go on strike and abstain from
appearance in the courts? The calling of strikes by lawyers and boycott of court proceedings
were an uncommon phenomenon but now have become increasingly frequent since the
lawyers' movement which is hampering the course of justice, as such, one has to look into the
problems created by lawyers' strikes. Similarly, the concept of "strike" is also alien to the
Legal Practitioners and Bar Councils Act, 1973, Pakistan Legal Practitioners and Bar
Councils Rules, 1976, Balochistan Civil Servants Act, 1974, Balochistan Government
Servants (Conduct) Rules, 1979 and Balochistan Employees Efficiency and Discipline Act,
1974. As a matter of fact the term "strike" is popularly used in labour laws of the country and
the general definition according to the Cambridge dictionary the refusal of continuing a work
due to an argument with the employer for reasons like the salary, working conditions or job
security. The term relates to labour laws and can be resorted to by workmen through their
elected unions alone, and that too, strictly in accordance with law relating to labour disputes
for the time being in force. In the case of Jamat -i-Islami v. Federation of Pakistan (PLD 2000
Supreme Court 111) concept of 'strike' was elaborated in the following terms:
"The term "strike" is popularly used in labour laws of the country and is generally
understood as a simultaneous cessation of work on the part of the workmen, and its
legality or illegality depends on the means by which it is enforced and upon its object
having reference to specific provision in the relevant laws. The "strike" is the
combined effort of workmen to obtain higher wages or other concessions and
privileges from their employers by stopping work at a pre -concerted time until their
demands are met. The question as to whether a call of strike given by workmen or
members of Labour Union or members of the Union of workers/employees is lawful
or otherwise depends upon the facts and circumstances of each case having regard to
the specific provisions laid down in the relevant statutes and the object sought to be
achieved."
8. Unfortunately, besides the lawyers, the observance of strikes on petty matters by the
civil servants, doctors, paramedics, teachers, engineers, relatives of missing persons, while
occupying the main arteries of the city, has become a common practice. The strike observers
have made the lives of common citizens highly miserable despite the fact that they are paid
from the public exchequer. In this regard a reference to the strike observed by the bar during
the current year would be sufficient to show the gravity of the issue:
Strike Dates in 2022
S. No. Date Reasons
1 28-10-2022 The reasons behind observing the strikes in question is
nothing but over minor issues i.e. demand for
regularization of circuit bench Sibi, solidarity with the
lawyers of Sibi, altercations with staff of courts,
altercation with police and judges, appointments of judges
of superior courts and demand for transfer of judges from
the higher -ups etc.
2 27-10-2022
3 26-10-2022
4 24-10-2022
5 22-10-2022
6 18-10-2022
7 15-10-2022
8 14-10-2022
9 08-10-2022
10 06-10-2022
11 01-10-2022
12 16-09-2022
13 15-09-2022
14 14-09-2022
15 09-09-2022
16 08-09-2022
17 31-08-2022
18 26-08-2022
19 25-08-2022
20 17-08-2022
21 15-08-2022
22 08-08-2022
23 08-07-2022
24 14-06-2022
25 10-06-2022
26 08-06-2022
27 02-06-2022
28 28-05-2022
29 25-05-2022
30 19-05-2022
31 16-05-2022
32 14-05-2022
33 11-05-2022
34 08-05-2022
35 18-04-2022
36 11-04-2022
37 08-04-2022
38 06-04-2022
39 04-04-2022
40 30-03-2022
41 29-03-2022
42 26-03-2022
43 18-03-2022
44 11-03-2022
45 08-03-2022
46 05-03-2022
47 17-02-2022
48 08-02-2022
49 08-01-2022
50 06-01-2022
9. It will not be fair to ignore another fact related to the issue in question which is also
sufficient to raise the eye brows of someone i.e. the observance of holidays by the members
of legal fraternity as well as other civil servants, particularly the teachers, detail whereof is
as under:
Detail of Vacation and Public Holidays
S. No. Vacation/Public Holidays Period High Court
01 Summer Vacation 15 Days
02 Winter Vacation 60 Days
03 Kashmir Day 01 Day
04 Pakistan Day 23 March 01 Day
05 Labor Day 01 Day
06 Independence Day 14 August 01 Day
07 Christmas and Quaid -e-Azam Day 25 December 01 Day
08 Eid-ul-Milad 01 Day
09 Eid-ul-Fitar 03 Days
10 Eid-ul-Azha 03 Days
11 Muharram Ashura 02 Days
12 Saturday and Sunday 96 Days
Total 185
Note. i) 48 Fridays (Half Day)
ii) 48 Saturdays (chamber day)
iii) 48 Sundays
10. Admittedly, the legal fraternity is one of the most important pillars of our nation and
it ensures the effective and efficient working of the government. The lawyers are the integral
part of judiciary and officers of the courts. Similarly, legal profession is the most honorable
and sacred profession and demands highest level of commitment as the duties of lawyers are
concerned directly with human life, dignity, liberty and property. A slightest dereliction on
the part of any lawyer in relation to such d uties may affect the prestige of the profession. It is
obvious from above mentioned table that in the last 10 months, the courts have remained idle
for about 6/7 months. Strikes and boycott of courts by lawyers, for one reason or the other,
have become a routine practice. The table also shows that most of the strikes have been
observed on minor issues, particularly, over minor altercations with the judges, staff of
judges, civil servants and police officials. In such situation, the question arises whether being
a developing country; can we afford such luxurious style of life having closed the doors of
this institution to the poor people for such a long period? The answer is nothing but a big No.
We expect that now at least better sense will prevail and those who are at the helm of affairs
will take necessary steps to cope with such alarming situation.
11. There is no cavil to the proposition that our Constitution confers upon its citizens the
rights to peaceful assembly, to form associations, and freedom of speech and expression,
however, it also stipulates that such rights are subject to rational restrictions imposed by law.
The right to protest is not unfettered and that it remains subject to all just restrictions,
especially that such class of action must be devoid of any resort to violence or any infraction
of the law. Locking the doors of courts premises and preventing the general public, litigants
and members of different firms to reach the courts and proceed with their cases by the
striking lawyers is nothing but a criminal offence, misconduct and contempt of court. Article
10-A of the Constitution guarantees right of due process and fair trial. The Hon'ble Supreme
Court, recently in Suo motu case No. 7 of 2017 held as follow:
"Every citizen and political party has the right to assemble and protest provided such
assembly and protest is peaceful and complies with the law imposing reasonable
restrictions in the interest of public order. The right to assemble and protest is
circumscribed only the extent that it infringes on the fundamental rights of others…
The right of assembly, the freedom of association and the freedom of speech cannot
be exercised by infringing the fundamental rights of others."
12. To seek justice and to be treated in accordance with law is an inalienable right of
every citizen guaranteed under Article 4 of the Constitution. Strikes of lawyers affect not
only public right of access to justice, but also deprive the general public of their fundamental
rights. Non -appearance of lawyers before Courts, to represent their respective clients, has
many adverse implications i.e. wastage of time, unjustifiably adjournments, gives rise to
backlog and hampering the course of justice. The question of strike by the lawyers' also came
into consideration before the Supreme Court of India in the case of "Ex -Capt. Harish Uppal
v. Union of India, (2003) (2 S.C.C. 45) and it was held:
"On the other hand a litigant has a fundamental right for speedy trial of his case,
because, speedy trial, as held by the Supreme court in Hussainara Khatoon (1) v.
Home Secy, State of Bihar is an integral and essential part of the fundamental right to
life and liberty enshrined in Article 21 of the Constitution. Strike by lawyers will
infringe the abovementioned fundamental right of the litigants and such infringement
cannot be permitted. Assuming that the lawyers are trying to convey their feelings or
sentiments and ideas through the strike in exercise of their fundamental right to
freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution,
we are of the view that the exercise of the right under Article 19(1)(a) will come to an
end when such exercise threatens to infringe the fundamental right of another. Such a
limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the
lawyers cannot go on strike infringing the fundamental right of the litigants for
speedy trial. The right to practise any profession or to carry on any occupation
guaranteed by Article 19(1)(g) may include the right to discontinue such profession or
occupation but it will not include any right to abstain from appearing in Court while
holding a vakalat in the case."
13. We are conscious of the fact that besides the professional obligations, the members of
the lawyers' community being cream of the society and frontline soldiers to protect the
Constitution and fundamental rights of the people have to raise their voice and lead the
society. We the members of legal fraternity derive all powers, status and privileges from the
institution and are bound for administration of justice. Instead of lowering the status of
courts of law and boycotting the same, other modes of protest should be adopted as observed
by the Indian Supreme Court in the case supra in the following words:
"It must immediately be mentioned that one understands and sympathises with the
Bar wanting to vent their grievances. But as has been pointed out there are other
methods e.g. giving press statements, TV interviews, carrying out of court premises
banners and/or placards, wearing black or white or any colour armbands, peaceful
protest marches outside and away from court premises, going on dharnas or relay
fasts etc. More importantly in many instances legal remedies are always available. A
lawyer being part and parcel of the legal system is instrumental in upholding the rule
of law. A person cast with the legal and moral obligation of upholding law can hardly
be heard to say that he will take the law in his own hands. It is therefore time that
self-restraint be exercised."
14. The courts cannot sit as silent spectator in such circumstances and shut their eyes on
the flagrant violation of law as opportunity of fair trial is the inalienable right of every
litigant. The learned High Court of Lahore while discarding the excuse of strike of Bar in
somewhat similar facts and circumstances in the case of Ch. Shamshair Ali v. Khalid
Mahmood (2015 YLR 47) held as under:
"8. In every procedural law, it is the "Party" to a proceedings, who has been held
responsible to perform certain acts and in case of default on the part of such party, the
penalty is liable to be invoked upon such party. Similarly in Order XVII, Rule 3
C.P.C., where "Party" to a suit to whom time has been granted, fails to produce his
evidence, the court may notwithstanding such default proceed to decide the suit
forthwith. Nowhere a latitude is provided in case the learned counsel representing a
party does not appear."
15. We have also gone through the Legal Practitioners and Bar Councils Act, 1973 and
Pakistan Legal Practitioners and Bar Councils Rules, 1976, which contain a full chapter on
the lawyers' duty towards the court. Rule 166 provides that it is the duty of advocates to
appear in court when a matter is called and if is so possible to make satisfactory alternative
arrangements. We are cognizant of the provision of Rule 175 -E of the Rules of 1976 which
has vested the PBC to "approve" a certain category of strikes called by the other lawyer
bodies but the same provision itself stands on a very weak footing. The said provision has no
basis in the parent statute and the same was introduced during the lawyers' movement. Even
otherwise the said provision is not in consonance with certain provisions of the Constitution.
The Constitution provided for access to justice, which was both a right in itself and the
means of protecting and restoring other basic rights. The Constitution safeguarded
fundamental rights by allowing public to make recourse to Constitutional Courts in case
those guaranteed rights are put at stake, resulting from the introduction of any law or any
custom or usage having the force of law. It is also by now settled that when a conflict
between the Act and Rules was irreconcilable, the rule would have to be declared ultra vires.
16. In such view of the matter, the question No.1 is answered in negative and it is held
that the lawyers' have no right to go on strike or to give a call for boycott and abstain from
appearance in courts in pursuance of a call for strike or boycott.
17. Reverting to the second question, admittedly every advocate who has accepted a brief
to attend the court and subsequently, he cannot refuse to attend court because a boycott call
is given by the Bar Association. The courts are under an obligation to hear and decide cases
brought before them and cannot adjourn matters merely because lawyers are on strike;
otherwise it would tantamount to becoming a privy to the strike. There is no obligation on
the part of the court either to wait or to adjourn the case on that count. Speedy justice is the
fundamental right of every litigant and cases appearing on the board should not ordinary be
adjourned on account of the absence of the lawyers unless there are cogent reasons to do so.
The advocates are answerable for the consequences suffered by their clients on account of
non-appearance due to strike observed by the Bar Association. John Marshall, J., the Chief
Justice of the Supreme Court of the United State in Cohens v. Verginia 19 US 264 (1821) has
stated as follows:
"It is most true that this Court will not take jurisdiction if it should not; but it is
equally true that it must take jurisdiction if it should. The judiciary cannot, as the
legislatures may, avoid a measure because it approaches the confines of the
Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with
whatever difficulties, a case may be attended, we must decide it, if it be brought
before us. We have no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given. The one or the other would be treason to
the Constitution. Questions may occur which we would gladly avoid, but we cannot
avoid them. All we can do is, to exercise our best judgment and conscientiously to
perform our duty."
18. For the above mentioned reasons, this question is also answered in negative and it is
held that the court are not bound either to wait or to adjourn the cases due to non -appearance
of the advocates on account of strike observed by the Association. It is the duty of the judges
to proceed with a case during court hours. Courts should not surrender to pressure tactics,
boycotts or threats.
19. So far as the question No.3 is concerned, it is imperative to state that advocates are
not employees, rather they are officers of the court. The lawyers holding vakalatnamas on
behalf of their clients cannot refuse to attend the court proceedings in pursuance to a call for
strike or boycott. After declaring the strikes of bar association and bar council
unconstitutional and illegal, a lawyer who does not observe strike cannot be visited with any
adverse consequences by the bar association or the bar council.
20. So far as merits of the case are concerned, due to absence of learned counsel for the
appellants, we perused the record of the case with the help of learned Deputy Prosecutor
General which reveals that the occurrence in this case had taken place inside the house of one
Ghulam Rasool Umrani and there was no other house or shop situated adjacent to the house
of occurrence. The eye witnesses produced by the prosecution i.e. Sohbat khan complainant
(PW -1) and Manthar Ali (PW -2) were very closely related to deceased Shah Muhammad
inasmuch as the complainant was a brother of the deceased while the other witness was the
real cousin of deceased. Both the alleged eye witnesses were also chance witnesses and they
had claimed to have been attracted to the place of occurrence upon hue and cry of the
deceased which do not appeal to a prudent mind. Instead of providing support to the ocular
account the medical evidence produced by the prosecution had gone a long way in creating
dents in the case of prosecution. The medical evidence had given a big lie to the ocular
account inasmuch as in the Medico Legal Certificate Ex.P/3 -A of deceased manifests that
one sharp weapon injury had been found on the dead body which had not been explained by
the said eye -witnesses. Admittedly, the occurrence in this case had taken place inside the
house of one Ghulam Rasool Umrani, but he had not been produced and examined before the
trial court. Leaving real brother in injured and helpless condition and proceeding to Police
Station for lodging of FIR is also unnatural and it creates serious doubts in the prosecution
story.
For what has been discussed above, we have no manner of doubt in our minds that the
prosecution has failed to prove its case against the appellants beyond reasonable doubt. The
instant criminal appeal is, therefore, allowed. The impugned judgment of the court below is
set aside and appellants are acquitted of the charge framed against them. They shall be
released forthwith if not required to be detained in any other case. These are the reasons of
our short order dated 26.10.2022.
The Registrar of this Court is directed to circulate copy of this judgment amongst all
the Judicial Officers of the province.
JK/196/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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