While each day witnesses new vistas in scientific and environmental development, the problems, worries, prices, rates, duties and taxes keep on escalating too.
It is, therefore, not unusual for a businessman to engage a counsel and off-load some of his worries on such a counsel.
The common worries faced by a businessman are: filing tax returns, paying taxes, duties, advance taxes, and preferring appeals against the orders of the learned tax/customs/excise officials - everything on time and within the due date.
The counsel, on the other hand, being a human himself, has his own limitations and problems to take stock of. It, sometimes, so happens that due to rush of work or pressure of work or excess work or negligence of an assistant, he forgets to do something on time (the matter of appeal being the most sensitive of them all, as time is the essence of all formalities for preferring an appeal before a judicial forum).
Each year, thousands of genuine hardship cases, utterly in need of justice, have to pass through the guillotine of the time barrier, without there being any fault on the part of the client/assessee/appellant himself.
To say that a counsel should never forget anything tantamounts to placing him in a super-natural stratum, which, certainly, he is not. To err is human. Besides, if negligence, being a human error, is to be penalised, it should be restricted to the person perpetrating the error rather than enlarging the penal tentacles to entangle the innocent client vicariously.
In a contract between a counsel and a client, there is no explicit or implied clause to the effect, that in the event of any fault/default/blunder or negligence on the part of the counsel, the client has to bear any vicarious liability/responsibility or damages.
There is no doubt that this principle of vicarious liability is a necessary stipulation in a relationship of principal and agent between the two parties. Why should such liability be extended to the counsel-client relationship is both incomprehensible and fraught with obscurity.
Though the recent judgements of the higher legal forums have been quite magnanimous in condoning delays in filing appeals, the mailer regarding the silent sufferer (the client suffering for no fault on his own part) remains obscure under the heap of legalities.
A latest judgement of the learned Income Tax Appellate Tribunal reported as: 2003 PTD 2778 is worth-mentioning a relevant extract from which is being reproduced as follows:
"As far as the delay in filing an appeal is concerned, the honourable High Court has taken a very liberal view on the subject. The old concept of justifying the condonation on a daily basis is no more being appreciated. The courts have considered the word "sufficient cause" to mean and include any reasonable disturbance to the petitioner which has prevented him from filing an appeal in time. No one gains by losing the right of appeal, specially when he is adversely affected by some order.
In the case of fiscal matters, the presumption of law is that, whosoever is aggrieved from an order would never waste time in going to the higher forum for seeking remedy.
In this regard, the principle laid down in the case of Mst. Katiji and others and subsequently, followed and further elaborated by various judges in Pakistan, requires mentioning once again."
THOUGH THE LEGAL MAXIMS: "Justice delayed is justice denied" and "Audi alteram partem" [None should be condemned unheard (literally: 'Hear the other side')] have since long entrenched themselves firmly in the judicial realm, yet there is hardly any respite for the silent sufferer, referred to above. The solution, perhaps, lies in the gradual pruning of the statute law of its colonial flavour and enriching it with the principles, precepts and canons in the Holy Quran and the Sunnah.
In accordance with the superiority and over-riding effect of the principle of Allah (more specifically in the absence of any non-obstinate clause like: "Notwithstanding anything contained in the Holy Quran....." in the fiscal statutes, it would be quite un-Islamic to punish the aforementioned silent sufferer without, in the first place, obtaining his/her admission on oath to the effect that he/she was aware of the time limitation in filing an appeal/application (as the case may be) as required by law.
It is only then that the requirement of the Allah's Principle of Natural Justice shall be said to have been fulfilled.
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