اگر ملزم ٹرائل میں تاخیر (on the ground of statutory delay) کی بنیاد پر درخواست ضمانت دائر کرکے واپس لے لیتا ہے تو دوبارہ اسی وجہ(ground) کی بنیاد پر درخواست ضمانت دائر نہ کر سکتا ہے

 A detained accused must not be made to suffer because his advocate elects to strike or does so in solidarity with his colleagues. The Pakistan Bar Council has enacted the ‘Canons of Professional Conduct and Etiquette of Advocates’ which stipulates that, ‘It is duty of the Advocates to appear in Court when a matter is called’3 and ‘make satisfactory alternative arrangements’ if he is unable to. The advocate representing an accused must discharge his duty towards his client. Every relationship functions on the basis of trust, and when trust is broken the relationship flounders and unravels, which also has societal repercussions.

The Constitution of the Islamic Republic of Pakistan (‘Constitution’) commences by stating that the exercise of authority is a sacred trust. If an advocate representing a detained accused does not attend court he fails to perform his professional duty and breaks his client’s trust.

An accused person like any other has the inalienable right to ‘enjoy the protection of law and to be treated in accordance with law’ but if advocates strike and trials are postponed this constitutional right of the accused is negated. The Constitution also mandates that ‘no action detrimental to the … liberty’ of anyone be taken ‘except in accordance with law’ therefore, if the trial of a detained accused is delayed on account of strike(s), and subsequently, the accused is acquitted then the additional incarceration suffered by the accused would have been detrimental to his liberty. Amongst the designated Fundamental Rights of an accused there is also the right to a fair trial and due process6 which rights are premised on proceeding with the trial of a detained accused.

Lawyers played an extraordinary role in ensuring compliance with the Constitution and the rule of law during the movement launched by them for the independence of the judiciary and for the restoration of judges who had been unconstitutionally deposed (the Lawyers’ Movement), which was wholeheartedly supported by civil society. During this movement some superior courts came to be presided over by those who took an oath of allegiance to a dictator (in violation of their constitutional oath of office8) or by those who were not appointed in accordance with the Constitution. Therefore, to protect and ensure compliance with the Constitution for the benefit and protection of the people, strikes were called and courts were boycotted.

However, if an advocate strikes for a lesser or personal reason it would be appropriate to first return the professional fee received from the client. An advocate should not strike at the expense of the client.

We also note that at times a case is adjourned because the complaint’s advocate is not in attendance. It is clarified that a court does not have to wait for the complainant’s advocate to attend court, much less adjourn a case due to his absence, because the State counsel, employed at taxpayers’ expense, is required to prosecute cases.

Bail After Arrest
Crl.P.1496/2022
Shahbaz Akmal v. The State through

Prosecutor General Punjab, Lahore and another
Mr. Justice Qazi Faez Isa
05-01-2023