P L D 1956 Lahore 1 (PLP)

S. A. RAHMAN, C. J.‑Mr. Aziz Bakhsh, Pleader, Montgomery, was given a notice to show cause why he should not be punished or removed from practice for professional mis conduct. The charge against him, as framed by the Advocate General, reads as follows:‑ " That you, having been engaged as a counsel by the accused in case Crown v. Alia under section 379 of the P. P. C., pending in the Court of the Additional District Magistrate, Montgomery, failed to attend the Court on 14th February 1955, and the case having been adjourned for fur ther proceedings to 15th February 1955, you left Mont gomery without making any arrangements for defence of the accused in the Court of the Additional District Magistrate and thereby disregarded your duty to the Court of the Additional District Magistrate, Montgomery." The position taken up by the pleader is that he had not been guilty of any professional misconduct wilfully and deli berately, but nevertheless he has expressed his regret that owing to peculiar circumstances in which he was placed he failed to appear in the Court of the trial Magistrate on the dates mentioned. He has, consequently, offered his respectful apologies and prayed that the notice against him may be discharged. The facts are not in dispute and may be briefly summarised as follows. The respondent was engaged as a counsel by Alia accused, who was being prosecuted under section 379 P. P. C. in the Court of the Additional District Magistrate, Mont gomery. The case was taken up by the trial Magistrate' on the 14th February 1955, and, according to the respondent, he had earlier been informed by the Additional District Magistrate that the case would be taken up after an interval of about an hour. The respondent, therefore, busied himself in attending to his other cases in a different Court. In the meantime however, the Additional District Magistrate called up the case before the promised interval had expired and started record ing the evidence of the witnesses. He did not allow Alia to fetch the respondent from the other Court. Statements of three prosecution witnesses were thus recorded and a charge framed against Alia accused. The case was then adjourned to the 15th February 1955 under section 256, Criminal P. C. for the purpose of questioning the accused regarding witnesses he wanted to recall for further cross‑examination. Alia contacted his counsel the same day and told him what had happened. The counsel accompanied Alia to the Additional District Magistrate and represented that the case had been taken up in his absence, so that the accused had been deprived of his right of cross‑examination of the prosecution witnesses. According to the respondent's written statement, the Additional District Magistrate gave him to understand that no harm had been done as he would have an opportunity to cross‑examine the prosecution witnesses on the 15th. On this the respon dent brought it to the notice of the Additional District Magistrate that he had another engagement at Lahore in the Court of the Sessions Judge, Montgomery, in a criminal appeal, on the 15th of February, and requested for some other date to be fixed in Alia s case. This request was not acceded to by the Additional District Magistrate. The respondent states that he then consulted his client Alia and told him that he could not appear for him on the next date of hearing, namely, the 15th of February. He also informed him that he had the "legal right" to summon these prosecution witnesses as defence witnesses. Alia agreed that he would call them in defence and permitted the counsel to proceed to Lahore. The respondent has mentioned in his written statement that if Alia had told him that he wanted to cross‑examine the witnesses and not summon them as defence witnesses, he would have made arrangements for some other lawyer to represent him. It seems that on the 15th, neither Alia nor his counsel appeared before the Additional District Magistrate, who issued warrants of arrest against Alia. Subsequently, Alia moved this Court for transfer of the case from the Court of the Additional District Magistrate. The transfer application was dismissed by Kayani J. with the observation that the facts, if anything, made out a case for professional misconduct against the counsel,' who left one case for another, and not for transfer of the case. It was in consequence of this observation that the notice was issued to the respondent, as mentioned above. It is clear from the recital of the above facts that the res pondent failed to discharge his duty to the trial Court by absenting himself on the 15th of February and not making arrangements for representation of the accused on that date, The mere circumstance that his client agreed to the procedure suggested by the respondent would not exonerate him from all responsibility in this connection. Litigants frequently are left little choice in such matters if their counsel plead more urgent engagements and have to acquiesce in suggestions made by their legal advisers. Besides his duty to his client, the respondent should have remembered that he owed a duty to the Court. A counsel must never forget that he is an officer of the Court and must assist the Court in the administration of justice to the best of his ability and capacity; at the same time safeguarding the interests of his client. By absenting himself on a date of hearing fixed by the Court, he was, if anything, hindering rather than assisting the judicial process. The arrangement arrived at between the respondent and his client savoured of a mere device to obtain an adjournment of the case in order to accommodate the counsel. This, in our opinion, amounted to professional misconduct and brought the respondent within the disciplinary jurisdiction of this Court. If the respondent found that he was unable to be personally present to conduct his client's case on the 15th of February, it was incumbent on him to make some other arrangement for his client's representation in Court. Once having accepted a brief, it is the bounden duty of the counsel to appear on all dates fixed in the case, or, in the alternative, to provide a substitute for himself if his professional engagements elsewhere Prevent his personal appearance in the case in question. In the present case, it is plain that the prosecution wit nesses further cross‑examination was regarded as essential to do justice to the case, on the respondent's own admission. In leaving their cross‑examination td the defence stage, the respondent was taking the risk of a request for the summoning of the witnesses in defence, being turned down by the trial Magistrate on the ground that an opportunity was given for their cross‑examination, which was deliberately not availed of. He was, therefore, failing to discharge his duty to his client, fully and conscientiously. In effect, it amounted to laying down a special procedure in the case, taking future orders of the trial Magistrate for granted, to suit the respondent's own convenience. We wish to make it clear that this type of conduct is grossly improper and if other counsel are under a similar misapprehension as to the correct position, this order, we hope, will disabuse their minds in this connection. We hold, therefore, that a case of professional misconduct has been made out against the respondent. This is, however, the first case of its kind. The respondent is a junior counsel and he has expressed his unqualified regret for his failure to attend on the due date in the trial Court. We are, therefore, prepared to take a lenient view in the circumstances of the case. We let off the respondent with a severe warning to be careful in future, and do not consider that any other action is called for. A. H.