P L D 1965 Supreme Court 22 (PLP)

CORNELIUS, C. J.‑This appeal by special leave is brought by an Advocate Mr. A. A. Zari to call in question an order of a Division Bench of the High Court of West Pakistan dated the 28th February 1962, declaring that a complaint of unprofessional conduct on two grounds brought by the appellant against another Advocate, Mr. Sharaf Faridi, was "not a fit case for taking action under section 10 of the Bar Councils Act, 1926". Subsection (2) of that section provides that if any complaint is made of professional or other misconduct against an Advocate, the High Court may summarily reject the complaint or may refer the case for enquiry either to the Bar Council, or in the alternative, after consultation with the Bar Council, to the Court of a District Judge. In this case, the High Court held an enquire after obtaining a reply to the complaint from Mr. Sharaf Faridi, and examining Mr. Zari on oath. One point raised before u on behalf of Mr. Zari was that in holding this enquiry, the High Court went beyond the limit laid down by the Bar Councils Act, and the proper course for the High Court was to have rejected the application summarily, that is without enquiry of any kind, if upon reading the complaint it formed the opinion that there was no fit case for further enquiry. The duty of enquiry, it was urged, was by the law entrusted either to the Bar Council, o after consultation with the Bar Council, to a District Judge to be nominated by the High Court as the tribunal of first instance. This question has been considered earlier by this Court in the case of Faizullah Khan v. Mukamal Shah (PLD1961 SC34:(1960) 3PSCR42), where it was observe as under:‑ "The expression `rejects summarily' cannot have any meaning more precise than of rejection in limine and there is nothing in the relevant law to require that the High Court should in such cases act merely upon what appears in the complaint, and should not inform itself, by the means within its powers, of the essentials of the matter, in order to decide whether the complaint should be further proceeded with." We do not see that in holding an enquiry to the extent appearing in this case, the High Court in any way usurped the function of enquiry reserved to the prescribed tribunal. Two main grounds of complaint were advanced, of which the facts may be briefly stated. Mr. Zari was at the relevant time tenant of a fiat belonging to one Mr. Habibur Rahman, who, is brother‑in‑law to Mr. Sharaf Faridi. Mr. Zari's allegation was that Mr. Habibur Rahman had been making efforts to have him, ejected from the fiat with the object of obtaining a higher rent. He had been living in the flat for nine years on a rent which had been estimated by the Rent Controller as a fair rent, and which was appreciably less than the rent which he had originally contracted to pay. On the 26th June 1961, a letter was delivered to Mr. Zari's young daughter by his cook which was found to contain obscene and objectionable matter. It was unsigned. Mr. Zari made enquiry from the cook, who finally .admitted that he had been given a reward of Rs. 5 by Hanif, a son of Mr. Habibur Rahman, to deliver this letter to the girl. He made a report of the matter on the same day to the Police and after enquiry a criminal proceeding was commenced against the said Hanif and one Muzaffar, who was charged apparently as the writer of this letter. The proceeding continued for a considerable time, and finally ended in a compromise on submission of apologies by both the accused persons on the 19th July 1962, but this was after the present complaint was filed, on the 14th September 1961 in which the relevant facts were stated. It was alleged that Mr. Sharaf Faridi had interfered with the accused Muzaffar and tutored him to say before the Police that he (Muzaffar) was a story‑writer, that the letter in question was just a piece of fiction which he had kept in his pocket and that it had dropped somewhere. Mr. Zari's ground for making this allegation was that when he came to know that Muzaffar had been approached in this way, which was through the Police to whom Muzaffar after first telling the false story ultimately told the truth, he himself approached Muzaffar to state the correct facts in writing and as a consequence, Muzaffar in the presence of his father put down the facts in a document of ‑which a photo‑static copy was added to the complaint. The charge was that in thus inducing Muzaffar to make a false statement to the Police Mr. Sharaf Faridi had acted otherwise than in accordance with the proper duty of a lawyer and was therefore guilty of misconduct. Sometime before the delivery of the offending letter, i.e., on the 14th May 1961, there was an incident in which, according to the allegation of Mr. Zari, his landlord Mr. Habibur Rahman had interfered with Mr. Zari's son when he was playing in the compound, and had snatched away from him a hockey ball of the value of Rs:

3. The same day Mr. Zari made a complaint to the Police of the offence of robbery under section 392, P. P. C. Shortly after, on the 24th May 1961, Mr. Habibur Rahman issued a notice of ejectment to Mr. Zari through Mr. Sharaf Faridi. There were proceedings before the Rent Controller, in which Mr‑Sharaf Faridi appeared as Advocate for Mr. Habibur Rahman. The complaint in this respect was that Mr. Sharaf Faridi had throughout been taking personal interest in Mr. Habibur Rahman's efforts to have Mr. Zari ejected from the flat and was thus cognizant of all the facts, and further that he had been abusing his position as an Advocate by personally tutoring Mr. Habibur Rahman to make false allegations of nuisance, etc., against Mr. Zari and his family. Mr. Zari summoned Mr. Sharaf Faridi as a witness in the case, and it was only from the time that he appeared in the witness box that Mr. Sharaf Faridi ceased to act as Advocate for Mr. Habibur Rahman. The ejectment case was still pending at the time when the present complaint was made, and there is nothing on the record to indicate that it has come to an end. It should be mentioned however that it was stated before us by counsel for both parties that all outstanding matters had been amicably settled by the contestants to this appeal, from which the inference may perhaps be drawn that the ejectment proceedings too have now been concluded. The reason for the wish of the appellant to continue this appeal, in spite of there having been brought about such a composition between him and Mr. Sharaf Faridi is, that in their judgment in the case the learned Judges of the High Court have, it is said, dealt with the case otherwise than was required by the relevant law, and in so doing they have expressed opinions adverse to the intentions and conduct of Mr. Zari. It is of importance to the appellant to establish that the matters which he had raised in his complaint were such as to raise issues of a serious nature which required that they should be duly investi gated and adjudicated upon. The learned Judges in the High Court had on the contrary observed, in criticism of the com plaint as follows:‑ "While dismissing this application we cannot help remarking that the conduct of the applicant, in having recourse to the provisions of the Bar Councils Act for an ulterior object, namely, to stifle the ejectment proceedings, is not very commendable. But for the anxiety to stifle those proceedings, we are certain, no such application would have been moved for taking action against the respondent for the alleged breach of his professional duties." It was urged that this condemnation is uncalled for, and on the contrary, if the right course had been followed, the learned Judges would have felt obliged to refer the complaint of Mr. Zari to a tribunal of first instance for enquiry. Stress was mostly laid upon the first of the two complaints, namely, that of influencing the statement of an accused person before the Police, although the second complaint was not in any sense abandoned. It was complained that the treatment of the first complaint by the High Court was in the nature of a special pleading for the respondent. At the time when the judgment of the High Court was delivered, the criminal cases in respect of the offending letter as well as the hockey ball case had not yet been concluded, and the learned Judges first observed that it would not be proper for them to express any opinion on the merits of the allegations. They went on, however, to say that the tutoring of any of the two accused Hanif and Muzaffar by Mr. Sharaf Faridi "could not have had any effect on the decision which the Police had to take in the matter," as what was said to the Police by the accused persons would have been "altogether irrelevant" and the Police would have to be guided on the question whether or not there was a prima facie case by the evidence which they had been able to obtain. They observed further that the statement which Mr. Zari had obtained from Muzaffar could not be used as evidence against either of the accused persons in view of certain provisions in the Evidence Act, or even as a con fession. On these grounds, the conclusion was reached that no useful purpose could be served "at this stage to refer this matter to the Bar Council." It is argued, and with force, that these were matters of defence in the criminal proceedings against Hanif and Muzaffar, and had no bearing whatsoever upon the charge against Mr. Sharaf Faridi of having behaved unprofessionally by inducing and procuring a statement of a particular kind from Muzaffar, whether that statement was false or true. The gravamen of the charge by Mr. Zari against Mr. Sharaf Faridi had nothing to do with the prospects of success or failure of the complaint against Hanif and Muzaffar, or whether certain evidence could or could not be led in that case. A serious question was raised whether it was at all appropriate for an Advocate to formulate a statement of facts to be made by an accused person, strengthened by the allegation (supporting evidence being specifically mentioned) that the statement which was being so procured was a false statement. It could only be established by evidence whether or not the statement was false. A substantial charge of an act of professional misconduct having thus been formulated, and the existence of evidence in support being indicated, it was contended that the High Court, within its powers under section 10(2) of the Bar Councils Act, was obliged to entrust the enquiry to the Bar Council, for it was not possible to contend that an allegation that an Advocate put a false statement into the mouth of an accused person was not an allegation of professional misconduct. The learned Judges; in considering whether the course of the criminal proceedings against Hanif and Muzaffar could be influenced by the allegedly procured statement and whether that statement could be used in evidence against either of the accused, or had any value as evidence, had misguided themselves and had prematurely terminated Mr. Zari's complaint on grounds which were evidently irrele vant. The charge of unprofessional conduct in acting as an Advocate on behalf of a relation, being personally fully aware of the facts of the case, and having through relationship an interest, coupled with the further allegation that Mr. Sharaf Faridi tutored his brother‑in‑law to make false allegations of nuisance, etc., was equally supported by detailed allegations in the complaint supported by the statement on oath in evidence made by Mr. Zari. The learned Judges after saying that it was for the Rent Controller to decide whether the grounds for ejectment were true or false, and that until this was decided it could not be said that Mr. Sharaf Faridi had been knowingly prosecuting a false case went on to observe that the contention of the landlord that he required the premises for his personal use "con not be said to be altogether unfounded." On this basis they concluded that it was not possible to say that Mr. Sharaf Faridi had knowingly prosecuted a false case. As to the complaint that Mr. Sharaf Faridi should not have acted as an Advocate when he knew that he would be called as a witness, they observed that when Mr. Sharaf Faridi was actually examiner before the Rent Controller, "not a single question was put to him with regard to the facts of the case," from which it was concluded that in reality he was not a necessary witness at all. They only object of summoning him was "to debar him from prosecuting his brother‑in‑law's case." As has been said already, this was the less serious case of the two charges, but it falls to be observed that the findings of the learned Judges do not cover all the points of complaint made by Mr. Zari in respect of Mr. Sharaf Faridi's conduct as an Advocate in the ejectment proceedings. For instance, it had been said in the complaint that Mr. Zari had "personally seen and heard the respondent tutoring his brother‑in‑law, Habibur Rahman to make false allegations against the applicant of nuisance and to say things which even the said Habibur Rahman was not willing (to say)". There seems to us to be no escape from the conclusion that in respect of the statement allegedly obtained from Muzaffar there was clearly a presentable case of professional misconduct, which was appropriate for adjudication after due enquiry. A lawyer may well advise his client who is accused of a crime to exercise his right in law of refusing to make a statement, but to advise the client to make a particular statement of facts in order to meet the allegations against him involves a delicate respon sibility, since the course of justice may well be diverted by even such aspects as the manner of presentation of facts, or the distribution of emphasis as among different facts or sets of facts.) But there can be no question of the limits of professional propriety having been exceeded where there is deviation from the truth in the statement prepared for an accused person, and where e an allegation of such deviation is made, we entertain no doubt that there would be a substantial case for enquiry and deter mination under the law. Equally, for a lawyer to induce hit; client to make false allegations of behaviour such as attracts legal penalties for his client's opponent, would be going well beyond the limits of integrity which a lawyer, as an agent of )awl and of justice, may be expected to lay upon himself. On these grounds, we are clearly of the view that the conclusion reached by the learned Judges in the High Court that there was no fit case for enquiry by a tribunal of fact was not well‑founded. In the ordinary course, the consequence of our finding would be that the case would have to be referred to the proper tribunal for adjudication, but in the present case, we have been presented after the conclusion of arguments with an application signed by both parties to the effect that they do not wish the matter to go any further and all the allegations made by each party against the other arc withdrawn. We have been desired however by learned counsel for the appellant to express our opinion as to the words of condemnation in respect of the appellant (already quoted) which have been used in the judgment under appeal, and as to this, we state, without hesitation, that those observations should not have been made. In view of the settlement which has been reached by the parties, we dismiss the appeal, but make no order as to costs. A. H. Order accordingly.