1983 PLP 1200 (CLC)

5. After giving my anxious thought to the arguments advanced at the Bar I feel that Mr. Basharat Ahmad Shaikh has not in any way disentitled himself to appear as a counsel on behalf of Ch. Khadim Hussain and Ch. Muhammad Abdullah in the present appeals for the reasons to follow.

6. The appellants have sought their release from the civil prison by challenging their detention on the following ground :- " The liability of United Corporation Limited is not the per sonal liability of its share-holders/directors under normal law of the land. However, a special provision has been made in sub section (2) of section 4 of the Co-operative Banks (Repayment and Recovery of Loans) Ordinance that the loan obtained by a Corpo ration can be recovered from a partner if it is found that it is he who has appropriated the amount and for this purpose an inquiry has been provided for. No such inquiry has been held by the Registrar. The legal result which flows from it is that appel lants herein have no liability standing against their names."

7. The question for consideration, therefore, is whether Mr. Basharat Ahmad Shaikh is guilty of improper conduct in the discharge of the professional duties and as such incompetent to appear on behalf of then appellants.

8. The grounds mentioned under para No. 6 above were still in the embryo when the controversy listed in the application was being defended by Mr. Basharat Ahmad Shaikh as Advocate-General. Change of sides by counsel, as held in the matter of Ram Lai Anand, Advocate, Lahore (A I R (33) 1946 Lab. 301) is not forbidden by law. Change of sides is forbidden only if there are confidential communications by one side which may be made use of when the lawyers represent the opposite party. In the present case there cannot be any confidential communication regarding the contro versy in possession of Mr. Basharat Abmad Shaikh when he now accepted the brief for Ch. Khadim Hussain and Ch. Muhammad Abdullah. No deep thought is required to hold so. The present controversy (detention of the appellants in civil prison) bad arisen long after the criminal trial of the appellants under sections 406/409, 419/409, 467/468, 471/109, Penal Code and the writ petition referred to above. The grounds of attack referred to above to challenge the validity of the detention are all meant to satisfy the Court that legal requirements, under the Azad Jammu and Kashmir Co-operative Banks (Repayment and Recovery of Loans) Ordinance has not been followed prior to the action stipulated under sec tion 8 of the Ordinance and had no existence at the time when Mr. Basharat Ahmad Shaikh appeared as a counsel before the Anti-Corruption Judge or in the writ petition and naturally no communication regarding these grounds could be conveyed to Mr. Basharat Ahmad Shaikh. This view point could not be repudiated by the learned Additional Advocate. General and therefore, to me, it stands established that on the day when Mr. Basharat Ahmad Shaikh accepted the brief on behalf of the appellants in the present appeals, he was not in possession of any confidential infor mation conveyed to him by the Government.

9. All the English case law dealing .with the subject. has been con sidered in (Rakusen v. Eills, Mundev and Clarke) ((1912) 106 L T 556). It was laid down in this case that although there may be cases where the circumstances are such that a solicitor who has acted for one side in a particular matter ,can not to be allowed afterwards to act for the opposite side in the same matter because he cannot clear his mind of confidential information given to him by his former client yet no general rule to that effect exists. Whether he will be restrained from so acting or not depends upon circum stances of each case, for the Court ought to treat each case on its own facts and consider whether there is any real mischief to be guarded against. The following observation in the case is of great importance -: "The whole basis of--the jurisdiction to grant the injunctions is that there exists or, I will add, may exist or may be reasonably anticipated to exist danger of a breach of that which is a duty, an enforceable duty, a duty not to communicate confidential information. But directly you have negatived the existence of any such danger, in my opinion the whole basis and substructure of the possibility of injunction is gone."

10. In Baijnath v. 'S', an advocate of Unao' (A I R 1934 Oudh 58) relying on 'Hardless v. HArdless' (A I R 1932 All. 536) it has been observed. " a great deal has to take place before a counsel can be said to be engaged by a party to a suit, so that it would be unprofessional for him to appear on the other side. In order to prevent counsel appearing for the other party, he must have a definite retainer, with a fee paid, or he must have such confidential instruc tions from one of the parties as would make it improper for him to appear for the other party." Identical view prevailed in 'Dr. Miss R. A. Money v. Qazi Asadui Haq. O.Sc., LL. B. Advocate' (P L D 1954 Pesh. 57) on the point it has been observed. "It is not every consultation, which debars a legal practitioner from accepting the brief of the other side. Only that consultation debars him, during the course of which an Advocate has received any information of a confidential nature, which can be of any use against that party in the litigation. The onus of proving that con fidential information was conveyed lies very heavily upon the applicant."

11. It is interesting that the writ petition was not moved by either of the applicants. It was moved by Kashmir National Cooperative Bank and others and had nothing common with the present controversy.

12. Sardar Rafique Mahmood, Additional Advocate-General, it is significant, was also the counsel on behalf of the Government to the petition moved before the High Court under section 491, Cr. P. C. which was meant to assail the detention of the appellants in civil prison. The lapse of the Additional Advocate-General to challenge the authority o1 Mr. Basharat Ahmad Shaikh before the High Court is also a factor which lends support to my view point that Mr. Basharat Ahmad Shaikh has not in any way disentitled himself to appear and conduct the cases on behalf of the appellants in a matter which was absolutely alien to the .criminal proceedings launched against the appellants before the Anti Corruption Judge or the writ petition moved in the High Court on behalf of Kashmir National Co-operative Bank and others. I cannot visualise a situation when a party and specially the party which is being represented by the Additional Advocate-General, would keep silent and allow Advocate to conduct a cause in respect of which some secret communica tion was divulged to him at any stage.

13. Let us see the issue from another angle. True that a lawyer cannot discharge himself by his own act and then go over to the opposite party but in the present case Mr, Basharat Ahmad Shaikh did not discharge himself by his own act. The writ petition in which he appeared on behalf of the Government bad -also been terminated. The termination of the proceedings led to the discharge of the services of Mr. Basharat Ahmad Shaikh.

14. It seems clear that in the first set of trials or suits there was no issue which is now involved in the present appeals. Nothing of the sort bas been alleged or occurred here. I, therefore, find that neither of the two grounds, listed in the applications, are unprofessional in nature for Mr. Basbarax Ahmad Shaikh as to debar him to appear on behalf of the appellants. For the aforementioned view of the matter I hold that no reliable evidence has been placed on the present record that there were any confidential communications touching the present issues conveyed to Mr. Basharat Ahmad Shaikh and, therefore, I do not find any bar for Mr. Basharat Ahmad Shaikh to appear and conduct the cases on behalf of the appellants. The applications of Sardar Rafique Mahmood, the learned Additional Advocate-General, stand disallowed. M. A. K.