P L D 1955 Federal Court 14 (PLP)

MUHAMMAD SHARIF, J.‑M. M. Ibrahim, a Pleader on the Rolls of the High Court of Judicature at Lahore, was proceeded against for professional misconduct and dismissed from practice by order dated 28th June 1954. This is now a petition for special leave to appeal against that order. The charge stated‑ "That you, Maulvi Muhammad Ibrahim, Pleader, Lahore, are guilty of professional misconduct as follows :‑ (1) That on 23rd July 1953, you went to Lyallpur and met Mr. Muzaffar‑ud‑Din, Magistrate Ist Class, who was an important witness in the case, Crown v. Agha Hamid Ali ex‑District Food Controller, under section 4 of the Preven tion of Corruption Act, pending in the Court of the Special Judge, Lahore, and told him that Agha Hamid Ali was going to be acquitted, that arrangements had been made for his acquittal and further told him "tusan ki lainan edhe vichon" and when he told you that he would state what he bad seen, you told him soch samajh kar shahadat dena" and thus tried to tamper with his evidence. That the above constitutes a reasonable cause for your removal or suspension from practice." It come to light during the course of hearing in the High Court of an application by the Crown for the transfer of two criminal cases pending in the Court of the Special Judge. The learned Judge, who heard the application, brought it to the notice of the learned Chief Justice, who constituted a Special Bench to inquire into the charge against the petitioner. In support of the petition, three grounds were urged‑ (1) that there was no proper enquiry by the Special Bench constituted to hear and determine the proceedings for profes sional misconduct ; (2) that the petitioner was not allowed full opportunity to cross‑examine a witness for the prosecution with a view to shake his credit, while his own defence witness was put questions which had no object other than that of discrediting him; and (3) that no sufficient opportunity was allowed to prepare for arguments in the case. Nos. 2 and 3 may be conveniently dealt with first. The allegation that a prosecution witness was not allowed to be cross‑examined to shake his credit relates to the evidence of Mr. Hamid‑ud‑Din, Magistrate: On 7th June 1954, when Mr. Hamid‑ud‑Din, Additional District Magistrate, Gujrat, was being cross‑examined by Mr. Mahmud Ali, a question was put regarding one Mian Muhammad Nazir, the allottee of Bhola Nath & Sons, Lyallpur. The reply was given and recorded. It mentions that Muhammad Nazir had his business on the ground for and he belonged to Amritsar. After this there is a note, "Warning given to counsel about the offensive and irrelevant questions." This would indicate that some question was put or intended to be put which was considered by the Bench as offensive and irrelevant. The Evidence Act says‑ Section 151.‑"The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed." Section 152.‑"The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form." These provisions of the Evidence Act give the Court power to regulate and control in specified circumstances the manner and form of putting questions and since an attempt was sought to be made to ask something which was not strictly relevant to facts in issue or was couched in a needlessly offensive and indecent form, the Court was perfectly within its right to disallow the question and to give a warning to B the counsel putting it. It cannot, therefore, validly constitute a ground of attack. As to No. 3, there is no warrant for the proposition, and none was brought to our notice, that on the conclusion of the evidence, the case must be adjourned for arguments. This depends on the exigencies of the case and in proper cases and on a proper representation, the Courts are usually inclined to extend this concession. The proceed ings commenced on 10th May 1954, and with intervals of long and short durations concluded on 16th June 1954. The entire evidence was recorded in the presence of the petitioner or his counsel and he should, therefore, have known that after the evidence had finished, he would be called upon to say whatever he had to say with reference to the evidence recorded by the Court. It further appears that no such adjournment was ever asked for and it was never represented to the Court that unless some further opportunity was allowed, the petitioner was not in a position to put his case properly. There is nothing to suggest that on account of any of the grounds, Nos. 2 and 3, the petitioner could in any way be prejudiced or bad in fact been prejudiced. On No. 1, the main grievance was that the entire evidence was not heard by all the members of the Special Bench which ultimately delivered the judgment. There was, therefore, it was argued, a violation of the principles of natural justice, which contemplated that the Judges who decide a cause, should themselves hear the evidence and form their own impressions about the demeanour of witnesses. Reference was made to In the matter of Janak Kishore and others (37 1 C 484) ; Lakhshmi Narain v. Mst. Ratni (93 1 C 700), Ramchandra v. King‑Emperor (3), Emperor v. Dorabji Pesionji Gora (25 Pat. 832) and Empress v. Khajendra Nath Bannerji (93 1 C 700). In the matter of Janak Kishore and others, the Patna High Court simply laid down that "the inquiry contemplated under section 14 of the Legal Practitioners Act is of an administra tive nature and is not a civil proceeding, the intention of the Act being to provide a procedure or remedy of a disciplinary character for practitioners practising in subordinate Courts without giving the Courts the power to inflict a penalty for abuse of discipline but only to recommend to the High Court the course to be taken. It is neither civil nor criminal, bat purely designed for the purpose of discipline." It was further held that "proceedings under section 14 of the Act could not be transferred under section 24, C. P. C. read with section 141 of the Code or by virtue of the power of superintendence vested in the High Court under section 107 of the Govern ment of India Act." All that was decided in that case was that under section 14 of the Legal Practitioners Act, the inquiry was to be made by the Presiding Officer of the Court and it could not be delegated or transferred to another officer. The only thing that emerges from this decision is that the proceedings under the Legal Practitioners Act are neither of a civil nor criminal character but are purely of a disciplinary nature. Lakhshmi Narain v. Mst. Ratni (93 1 C 700) is a case of the Lahore High Court. It armed the proposition that "an enquiry into the conduct of a legal practitioner is neither a civil nor a criminal proceeding though being penal in its nature, it resembles in many respects a criminal case." In this case, a petition was made under section 526, Cr. P. C. for the transfer of the proceedings from the Court of the Magistrate First Class, Ambala Cantt. Without holding that section 526, Cr. P. C. could apply, the learned Judges were of the view that the language of section 107 of the Government of India Act was wide enough to empower the High Court to send for the record of a proceeding under section 14 of the Legal Practitioners Act and to pass such orders as they thought fit. The case was transferred to the Court of Additional District Magistrate. Ramchandra v. King‑Emperor (1) relates to the trial of a Sessions case. It was held that "section 350, Code of Criminal Procedure, 1898, applies only to Magistrates and not to Sessions Judges and a Sessions Judge is not competent to pronounce judgments on evidence recorded by his predecessor or on evidence partly recorded by his predecessor and partly by himself. The consent of the accused person is immaterial." Section 350, Cr. P. C. is quite explicit on the point and in all trials where the proceedings are governed by the provisions of the Cr. P. C. section 350 must have full application. It, however, nowhere lays down that the proceedings under the Legal Practitioners Act are to be governed by or to be con ducted in accordance with, the provisions of the Cr. P. C. Emperor v. Dorabji Pestonji Gora (2) is concerned with the trial in the High Court of a criminal case with the help of the jury. It was held that "where after the swearing‑in of the jury and reading out of the charge to the jury in a trial before the High Court, another Judge was appointed in place of the Presiding Judge, who fell ill, the trial need not commence de novo but can proceed further before the new Judge." Its utility to the present case is not clear. Empress v. Khajendra Nath Bannerji (3) also relates to the trial of a criminal case with the help of the jury before the High Court. Part of the evidence had been recorded before one Judge retired. It was pointed out that the case could not be taken up from the stage where it had been left and the entire evidence should have been recorded de novo. On this the prosecu tion withdrew the case. From the above, it would be quite clear that where the trial is conducted strictly in accordance with the Cr. P. C., it is necessary to give full effect to section 350 which entitles the accused to demand that the witnesses or any of them be resummoned or re‑heard. This provision does not apply to Sessions trial and the entire evidence should be heard by the Judges or the Judge holding the trial. The question, however, with which we are concerned is of a different nature. Unless it could be positively proved that the proceedings under the Legal Practitioners Act should be conducted strictly in accordance with the procedure laid down in the Cr. P. C. the rulings referred to above would have no significance. The Legal Practitioners Act is a self‑contained Act and its object is to provide for disciplinary or administrative action against the officers of the Court. Section 13 is as follows :‑ "The High Court may also, after such inquiry as it thinks fit, suspend or dismiss any pleader or mukhtar holding a certificate as aforesaid." Then the grounds for suspension and dismissal are enumerated, All that is necessary is that some sort of enquiry as the High Court thinks fit should be made before action is taken against the pleader or mukhtar charged with professional misconduct No particular kind of procedure is prescribed, but since penalty in one form or another could be imposed upon the E legal practitioner, it is essential that he should have an opportunity of being heard and afforded a chance to show that he was innocent of the charges against him. In a case reported as A I R 1922 Pat. 608, a case under the Legal Practitioners Act, it was laid down that "the High Court would exercise its disciplinary jurisdiction even though the reference under section 14 with regard to the alleged misconduct of a pleader is not made by the trial Court in whose Court the occurrence took place, but the appellate Court, which has no power to refer it. It would be necessary, however, that the High Court should make the enquiry. What the nature of the enquiry ought to be is clearly a matter for the discre tion of the. Court. The only question that is really material for determination is : whether the petitioner in the proceedings against him, had or had not an opportunity of being heard 7 The grievance, as noted above, on the part of the petitioner was different that the Judges composing the Special Bench did not hear the entire evidence produced. For this, the petitioner must thank himself. A careful‑ perusal of the record should give no just cause for complaint. The proceedings commenced on 10th May, 1954, before the Special Bench comprising the Chief Justice, Kaikaus and Abdul Aziz, JJ. On that day, the statements of Muzaffar‑ud‑Din, Magistrate (P. W. 1) ; Hamid‑ud‑Din, A. D. M. (P. W. 2) and Mr. Nasrulla Khan (P. W. 3) were recorded. Two witnesses of the respondent i.e., Agha Ahmad Ali (P. W. 1) and K. S. Ch. Faqir Muhammad were also examined. The case was then adjourned to 17th May, 1954. On that day, two more witnesses for the respondent, i.e., Hafiz Aziz Ahmad (P. W. 2) and Sheikh Muhammad Ibrahim (P. W. 3) were examined. The case was adjourned to 24th of May 1954. On that day Mr. Gulzar Muhammad Khan, Special P. P., was examined as a Court witness. From his evidence it transpired that just before the transfer application was presented to the High Court, the then Advocate‑General Mr. Abdul Aziz Khan (now Mr. Justice Abdul Aziz Khan) was also consulted. On this, Mr. Mahmud Ali, the counsel for the respondent was asked whether he wanted a new Bench to be constituted. His reply was in the affirmative. This led to the constitution of another Bench consisting of the Chief Justice, Rahman and Kaikaus, Judges. Mr. Mahmud Ali, the counsel for the respon dent, was given "the option of either re‑calling the witnesses and examining them afresh or of agreeing to the evidence that has been recorded so far being treated as evidence in the case." Mr. Mahmud Ali stated that he agreed to the latter course, provided he was permitted to re‑call any of the witnesses so far examined for cross‑examination, if necessary. He was directed to intimate the names of the witnesses whom he would like to re‑call. The statement of Mr. Gulzar Muhammad, Special P. P. (C. W. 1) was continued. After the statement of the Special P. P. had been concluded, one more witness for the respondent was examined i.e., K. S. Sheikh Munzur Ali (R. W. 6). On 25th of May 1954, Agha Saadat Ali Khan (R. W. 7) another witness was examined for ttie respondent. The case was then fixed for 7th of June 1954. On that day, Mr. Muzaffar‑ud‑Din, the chief prosecution witness in the case was recalled and his further cross‑examina tion was made by the respondent himself at great length. Similarly Mr. Hamid‑ud‑Din, Additional District Magistrate was re‑called and he was cross‑examined by Mr. Mahmud Ali as also Mr. Nasrullah Khan, Magistrate First Class. The proceedings were then adjourned to 14th of June 1954. On that day, Moulvi Ghulam Rasul (R. W. 8) was examined for the respondent. On the next morning, i e., the 15th June 1954, Mr. G. M. Khan, Special P. P. (C. W. 1) was further cross‑examined. Mr. Sharaf Ali, Reader to the Additional Sessions Judge, was another witness produced by the pro secution as P. W.

4. The respondent then produced Hussain Bakhsh (R. W. 9) ; Karam Ilahl (R. W. 10) ; Imam Din (R. W. 11) and M. Shamim Hussain (R. W. 12) as his own witnesses. On the 16th of June 1954, Muhammad Ismail, Orderly to Additional Sessions Judge, was examined on the side of the respondent. Then the respondent himself appeared as his own witness. This closes the evidence for the parties. The judgment was delivered on the 28th June 1954. It was also contended that Ch. Faqir Hussain, an important witness for the defence, was not re‑examined after Rahman, J. had become a member of the Special Bench and that there was no justification for the remark "Ch. Faqir Hussain was not blessed with a strong memory." The petitioner never asked for his re‑examination and the above remark was the conclusion reached on an appraisement of the evidence. From the foregoing examination of the file, it would appear that all reasonable facilities were afforded to the respondent in the conduit of his case. Ground No. 3 must be held to be without force. The petition is, therefore, dismissed. A. H. Petition dismissed.