 
 
IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
 
MR. JUSTICE IJAZ UL AHSAN 
 
 
CIVIL APPEAL NO.1703 OF 2013 
(Against the judgment dated 31.5.2013 
of the High Court of Sindh, Karachi 
passed in Const.P.No.D-1365/2012) 
 
 
Shahid Anwar Bajwa 
 
…Appellant(s) 
VERSUS 
S.M. Asif and others 
 
…Respondent(s) 
 
For the appellant(s): 
Mr. Shahid Anwar Bajwa, ASC (in person) 
Mr. M. S. Khattak, AOR 
 
 
For the respondent(s): 
Not represented 
 
 
On Court’s notice: 
Mr. Muhammad Waqar Rana, Addl.A.G.P. 
 
 
Date of hearing: 
25.1.2018 
 
ORDER 
 
 
MIAN SAQIB NISAR, CJ.- In this appeal with the leave of 
the Court dated 16.12.2013, the key issue involved is whether the 
appellant, who is a retired Judge of the High Court of Sindh, is entitled 
to practice before the same High Court.  
2. 
 
The facts of the case are that the appellant was appointed 
as an Additional Judge of the High Court of Sindh vide Notification 
dated 24.9.2009. Thereafter, he was appointed as a Judge of the said 
Court under Article 193 vide Notification dated 17.9.2011. He served 
as a Judge of the said Court till his retirement w.e.f. 4.10.2012. 
Thereafter, he represented a party in a petition filed before the said 
High Court as a counsel, wherein an objection was raised to the effect 
that being an ex-Judge of the same High Court he could not appear as 
a counsel before that Court. This issue was decided against the 
Civil Appeal No.1703 of 2013  
 
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appellant and while interpreting the provisions of Article 207 of the 
Constitution it was categorically held by the Court through the 
impugned judgment that he is debarred from appearing before the 
High Court of Sindh. 
3. 
 
Leave in this case has been granted in the following 
terms:- 
 
“The petitioner remained a permanent judge of the 
High Court of Sindh and retired on 04.10.2012 upon 
attaining the age of superannuation. He filed power of 
attorney to represent a party in a constitution petition before 
the High Court of Sindh. A primary question arose as to 
whether there existed a constitutional bar disallowing a 
retired judge of a High Court to plead before the same Court. 
The petitioner pleaded his own case and a Division Bench of 
the High Court of Sindh held that the constitution does not 
allow the petitioner to plead before the same Court where he 
had served as a permanent judge. 
2. 
The relevant provision barring a retired judge of a 
High Court to plead before the certain Courts are 
incorporated in Article 207 of the Constitution which reads:- 
“207. Judge not to hold office of profit, etc. (1) A 
Judge of the Supreme Court or of a High Court shall 
not- 
(a) 
……………………………………. 
(b) 
……………………………………. 
(3) 
A person who has held office as a permanent 
Judge- 
(a) 
of the Supreme Court, shall not plead 
or act in any court or before any 
authority in Pakistan; 
(b) 
of a High Court, shall not plead or act 
in any Court or before any authority 
within its jurisdiction; and 
(c) 
…………………………………….” 
Civil Appeal No.1703 of 2013  
 
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3. 
The petitioner had pleaded before the High Court and 
had argued before us that there was a clear bar against a 
permanent judge of a High Court to plead before that Court 
under Article 166(3) of the 1956 Constitution and by the 
change brought about in the corresponding Article 207 of the 
1973 Constitution the bar relates only to Courts subordinate 
to the High Court where the Judge had served. Article 166(3) 
of 1956 Constitution reads:- 
“A person who has held office as a permanent 
judge of a High Court shall not plead or act 
before that court or any court or authority 
within its jurisdiction.” 
4. 
Since the question raised in this petition is one of first 
impression and requires interpretation of Article 207 of the 
Constitution regarding constitutional bar on retired 
permanent judge of a High Court to plead before the same 
Court leave to appeal is granted.” 
 
4. 
 
The appellant in person, has referred to the provisions of 
Article 207(3)(b) of the  Constitution of 1973 as well as Article 166(3) of 
the Constitution of 1956, which for the purposes of facility of reference 
are reproduced below:- 
Article 207(3)(b) 
“A person who has held office as a permanent judge - of a 
High Court, shall not plead or act in any court or before any 
authority within its jurisdiction.” 
Article 166(3) 
“A person who has held office as a permanent judge of a 
High Court shall not plead or act before that court or any 
court or authority within its jurisdiction.” 
On the basis of the omission of the words “that Court”, which were 
present in Article 166(3) of the Constitution of 1956 but were omitted 
in Article 207(3)(b) of the Constitution of 1973, he argued that the 
significance of such omission could notbe ignored. Through such 
Civil Appeal No.1703 of 2013  
 
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deliberate omission by the legislature, the bar of appearance has been 
restricted to the Courts sub-ordinate to the High Court in which a 
person has served as a Judge, but there is no longer a bar against 
appearance before the same High Court. In support of his contentions, 
reliance 
has 
been 
placed 
upon 
the 
judgments 
reported 
as 
Government of Pakistan Vs. Syed Akhlaque Hussain and another 
(PLD 1965 SC 527), M/s Haider Automobile Ltd. Vs. Pakistan (PLD 
1969 SC 623), AL-Jehad Trust through Raeesul ah 45 Mujahideen 
Habib-ul-Wahabb-ul-Khairi and others Vs. Federation of Pakistan 
and others (PLD 1996 SC 324), Lahore Development Authority 
through D.G. and others Vs. Ms. Imrana Tiwana and others (2015 
SCMR 1739) and M/s Mustafa Impex, Karachi and others Vs. The 
Government of Pakistan through Secretary Finance, Islamabad 
and others (PLD 2016 SC 808). It is also argued that the case-law, on 
which reliance has been placed by the learned High Court, while 
passing the impugned judgment, did not relate to the Constitution of 
1973 but to the Constitution of 1962, therefore, these judgments have 
no relevance to the facts and circumstances of the present case. 
5. 
 
It is to be noted that the same arguments were raised 
before the High Court, but after considering the relevant provisions of 
both the 1973 and the 1962 Constitutions as well as the relevant 
judgments and other material from our jurisdiction as also from 
foreign jurisdictions, the learned Division Bench rejected the same. It 
was held by the Court that the bar on a person who has been a 
permanent Judge of a High Court as contained under Article 207(3)b) 
of the Constitution is not limited only to the courts which are under 
the administrative control of a High Court but it also includes the High 
Court.  
Civil Appeal No.1703 of 2013  
 
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6. 
 
The judgment of the High Court is well reasoned and 
cogent. 
However, 
it 
is 
appropriate 
to 
consider 
the 
relevant 
constitutional/statutory history of the restriction on the ex-Judge(s) of 
the superior Courts to practice before the same Court. The restriction 
was first introduced in 1956 in the shape of Article 166(3) of the 1956 
of Constitution, however, such restriction ceased to exist in the year 
1958 when the Constitution of 1956 was abrogated. Thereafter, the 
restriction was re-introduced by the Retired Judges (Legal Practice) 
Order, 1962 (Order of 1962), but the same was limited to such Judges 
who were removed from service; however, a retired Judge retained the 
right to practice before the same High Court. In the Constitution of 
1962, there was no provision imposing any such restriction on a 
permanent Judge of the High Court after his retirement or removal, 
however, by means of the Legal Practice (Disqualifications) Ordinance, 
1964, the Order of 1962 was repealed and the bar was re-introduced.  
Ultimately, the restriction was again introduced in the form of Article 
207(3)(b) of the Constitution of 1973. Thereafter, the Ordinance of 
1964 was also repealed as the issue had already been dealt with by the 
Constitution itself. In this regard it is to be noted that the validity of 
the Ordinance of 1964 was challenged on the ground of being violative 
of fundamental rights. The Full Bench of the High Court in the case of 
Syed Akhlaque Hussain Advocate (Writ Petition No. 217 of 1964) held that 
the provisions of the said Ordinance offended against Fundamental 
Right, namely, the right to enter upon any lawful profession or 
occupation, and to conduct any lawful trade or business, but on 
appeal, this Court vide the majority judgment reported as Pakistan v. 
Syed Akhlaque Hussain (PLD 1965 SC 527) held that the Ordinance 
of 1964 did not violate any of the Fundamental Rights of citizens 
embodied in the Constitution. The issue was again considered by this 
Civil Appeal No.1703 of 2013  
 
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Court in M/S Haider Automobile’s case (supra) wherein it was held 
as under: - 
“The right to practice the profession of law is a right 
available subject to a system of licensing under the Bar 
Councils Act or under the powers of the High Court under its 
Letters Patent and of the Supreme Court under its own rules 
and a person seeking to practise has to obtain a licence in 
that behalf upon satisfying the Licencing Authority that he 
fulfils the qualifications laid down and has paid the fees 
prescribed for that purpose. He is also subject to the 
disciplinary control of the Courts and the tribunals in which 
he practises or at any rate was, until the coming into force of 
the Legal Practitioners and Bar Councils Act, 1965. Under 
the latter disciplinary control has to a large extent, been 
transferred to the Bar Councils but the right is nevertheless, 
not an uncontrolled or absolute right. Nor could it in the very 
nature of things be. Such regulatory provisions are not and 
can never be considered to be violative of the Fundamental 
Right to carry on a trade or profession. The question then is 
as to whether Ordinance No.II of 1964 did impose any bar 
which went beyond regulation of the profession. The 
impugned Ordinance did not prevent, it will be observed, a 
retired Judge of the High Court from doing chamber 
practice, that is, advising clients in Chambers or practising 
in the jurisdiction of a High Court of which he was not a 
Judge or practising in the Supreme Court. Similarly although 
a retired Judge or Chief Justice of the Supreme Court was 
prohibited from practising before any Court or tribunal in 
Pakistan, his right to do Chamber practice remained 
unaffected. The Ordinance No.II of 1964 did not, therefore, 
introduce any total prohibition but it only restricted the 
forums before which a retired Judge could practise, in the 
interest of maintaining the independence of the judiciary; 
preserving the dignity of a person who had held such a High 
Office and preventing embarrassment both to him and to the 
Judges before whom he was otherwise likely to appear. Such 
a restriction was not, in the circumstances, in my opinion, 
violative of the said Fundamental Right No. 8 and, therefore, 
Civil Appeal No.1703 of 2013  
 
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the question of the Ordinance being void did not at all arise. 
I am in this respect, in agreement with Cornelius, C. J. Fazle-
Akbar, Yaqoob Ali and Abdus Sattar, JJ. with their opinions 
in this regard in the case of Government of Pakistan v. Syed 
Akhlaque Hussain and another.” 
7. 
 
The rule that a retired Judge is not entitled to appear as a 
counsel before a Court of equal or lower jurisdiction to the one in 
which he sat in his capacity as a Judge is found all across the 
common law world, including England, Canada, India, several US 
states, Jamaica, Trinidad and Tobago. Reference in this regard may be 
made to Section 75 of the Courts and Legal Services Act 1990 of UK, 
which provides a bar on a Judge as under: - 
 
75. Judges etc. barred from legal practice. No person 
holding as a full-time appointment any of the offices listed 
in Schedule 11 shall: -  
(a) 
provide any advocacy or litigation services (in any 
jurisdiction); 
(b) 
provide any conveyancing or probate services; 
(ba) 
carry on any notarial activities (within the meaning 
of the Legal Services Act 2007); 
(c) 
practise as a barrister, solicitor, public notary, 
licensed conveyancer or licensed CLC practitioner, 
or be indirectly concerned in any such practice; 
(d) 
practise as an advocate or solicitor in Scotland, or 
be indirectly concerned in any such practice; or 
(e) 
act for any remuneration to himself as an arbitrator 
or umpire. 
Schedule 11 includes the Judges of the Supreme Court, Lord Justices 
of Appeal, Puisne Judge of the High Court, Circuit Judges, District 
Judges, etc. The outline Conditions of Appointment and Terms of 
Service of High Court Judge in UK also provides such restrictions, i.e. 
“A High Court Judge shall not practise as a barrister or solicitor or be 
indirectly concerned in any such practice (S.75 Courts and Legal 
Civil Appeal No.1703 of 2013  
 
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Services Act 1990). … Any offer of appointment is therefore made on the 
understanding that appointees will not return to practice”. Similarly, 
Article 220 of the Indian Constitution imposes restriction on legal 
practice after being a permanent Judge, i.e., “No person who has held 
office as a permanent Judge of a High Court … shall plead or act in any 
court or before any authority in India except the Supreme Court and the 
other High Courts”. In the light of the above it is clear that in the 
common law jurisdictions the intention of the legislature has always 
been to impose a bar on ex-Judges of the superior Courts to appear as 
counsel before the same Court or the Courts/forums subordinate to 
that Court.  
8. 
 
In this backdrop, we shall consider the relevant provisions 
of the Constitution of 1962 as well as 1973. Article 166(3) of the 
Constitution of 1962 provided that “A person who has held office as a 
permanent judge of a High Court shall not plead or act before that 
court or any court or authority within its jurisdiction”; whereas, 
Article 207(3)(b) of the Constitution of 1973 provides that “A person 
who has held office as a permanent judge of a High Court, shall not 
plead or act in any court or before any authority within its 
jurisdiction”. A plain reading of two provisions makes it abundantly 
clear that not only the words “that Court” been omitted, as relied upon 
by the appellant, but also the word “before” has been replaced with the 
word “in”, thus, the whole construction of the provision has been 
changed. Thus, it can safely be held that by the omission of word “that 
Court” the intention of the legislature is not to allow the ex-Judge of a 
High Court to appear as a counsel before that Court. In order to 
ascertain the real intention of the legislature, it is necessary to keep in 
mind the provisions of Article 207(3)(a) ibid, which provides that “A 
person who has held office as a permanent judge of the Supreme Court, 
Civil Appeal No.1703 of 2013  
 
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shall not plead or act in any Court or before any authority in Pakistan”. 
Thus, from this provision the intention of the legislature is clear that a 
ban has been imposed on a Judge not only to appear before the 
courts/forums subordinate to that Court but also from the court 
where he acted as a permanent judge. This fact further receives 
support from the fact that when two permanent Judges of the High 
Court of Sindh i.e. Mr. Rasheed A. Rizvi and Mr. Mushtaq Ahmed 
Memon, were removed from their office by virtue of the Oath of Office 
(Judges) Order, 1999, considering that they were restricted to act and 
plead before the said High Court being permanent Judges, special 
permission was given to them by means of the Chief Executive’s Order 
No.5 of 2000.  
9. 
 
These are the reasons for our short order of even date, 
whereby the instant appeal is dismissed.  
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
Islamabad, the 
25th of January, 2018 
Approved For Reporting 
Waqas Naseer 
