1996 PLP 844 (CLC)

MUHAMMAD ALAM KHAN (MEMBER).‑‑‑On 9‑1‑1995 Mian Gul complainant, filed a complaint in the N.‑W.F.P. ,Bar Council, Peshawar, alleging therein that respondent Mr. Sahibzada Khan, Advocate in a case titled Haji Nadar Khan and others v. Said Rehman and others, pending trial in Revenue Court, Takht Bhai, District Mardan, got his statement recorded as witness on 7‑5‑1994 and on the same date he submitted his power of attorney as an Advocate for Haji Nadar Khan and others, in the same case and has thus committed a gross negligence and professional misconduct under the provisions of Legal Practitioners and Bar Councils Act, 1973 and the rules framed thereunder.

2. The Disciplinary Committee of the N.‑W.F.P. Bar Council, Peshawar initiated proceedings against the respondent wherein he submitted his written statement on 15‑3‑1995, denying the allegations levelled against him in the complaint. The Disciplinary Committee recorded the statement of Mian Gul complainant vide order sheet dated 27‑5‑1995 and the proceedings were adjourned to 24‑6‑1995 on the request of the respondent, as he wished to bring certain documents on record. On the said date the learned Members of ‑the Disciplinary Committee without recording the statement of the respondent, fixed the complaint for consideration for 2‑9‑1995. After considering the evidence available on record, the Disciplinary Committee referred the matter to this Tribunal for final adjudication.

3. In the written statement of the respondent it was averred that he was a counsel in a case titled ' Itbar Khan v. Nadar Khan and others' on behalf of the respondents, pending before Collector, Takht Bhai in which respondent/Advocate had submitted his power of attorney as an Advocate on 22‑8‑1994. So far as the statement of the respondent was concerned, it was recorded by a Local Commissioner on 7‑5‑1994 in another case titled Haji Nadar Khan and others v. Said Rehman and others. Both the cases are independent and are pending in different Courts. The respondent further averred that he has not recorded his statement in a case in which he was a counsel and that the two cases referred to by they complainant were independent cases. The respondent further asserted that an Advocate can record his statement for his client if his power of attorney so permits. Furthermore, the respondent termed the complaint to be frivolous, baseless and vaxatious one and prayed for the dismissal of the complaint with compensatory costs.

4. In proof of the allegations, the complainant has produced copy of the power of attorney, written arguments submitted by the respondent in the Court of Collector, Takht Bhai and the attested copy of the statement of the respondent which was recorded by a Local Commissioner in case titled Haji Nadar Khan v. Said Rehman etc. copies Exh. PA to Exh. PD on file. In the statement of the complainant before the Disciplinary Committee, the complainant admitted in the cross‑examination that the case in which the respondent acted as an Advocate and submitted his written arguments was pending in the Court of Collector, Takht Bhai titled as Itbar Khan v. Nadar Khan and was an independent case and the case in which the respondent recorded his statement was a separate case titled as Nadar Khan v. Said Rehman. The complainant further admitted that Said Rehman on whose behalf the instant complaint has been filed is the tenant of the father of the respondent Advocate and that produce cases are pending in the Revenue Courts between Said Rehman, father and other relatives of the respondent Advocate.

5. The learned Additional Advocate‑General mainly relied on the statement of the complainant and the documents Exh. PA and power of attorney in favour of the respondent, which was filed in the Court of Collector, Takht Bhai in revenue appeal titled as Itbar Khan v. Nadar Khan etc. and statement of the respondent/Advocate, copy Exh. PE before the Local Commissioner in suit for produce titled Haji Nadar Khan v. Said Rehman pending in the Court of Assistant Collector Ist Grade, Takht Bhai and contended that the respondent being a witness in a case could not undertake to act as counsel and thus the respondent has committed a professional misconduct in view of rule 157 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976.

6. Learned counsel appearing for the respondent/Advocate, contended that the two cases were different having distinct causes of action and pending in two different Courts, the respondent has not represented the conflicting interests and furthermore, the respondent Advocate was the opposite counsel of the complainant, thus the complainant was biased against the respondent. The two cases in which the respondent was an Advocate had no nexus with each other. The complaint with mala fide intention has been filed and being vaxatious in nature is liable to be dismissed with compensatory costs.

7. The learned Members of the Disciplinary Committee without recording the statement of the respondent has taken into consideration the statement of the complainant only and without affording an opportunity to the respondent to produce evidence, has taken away a valuable right from the respondent and has thus violated the well‑established norms of law which are so well entrenched in our legal system, that its non‑observance vitiates the entire proceedings.

8. From the evidence available on record it is crystal clear that two cases referred to by the complainant in his statement are distinct with separate causes of action and that in revenue case, in which the respondent/Advocate got his statement recorded by the Local Commissioner, the respondent was never an Advocate and the respondent was examined in private capacity as a resident of that area when the learned Local Commissioner Jehangir Shah, Advocate visited the area for spot inspection. That was a personal act of the respondent/Advocate having no connection with the revenue appeal in which he was a counsel. An Advocate can be a witness in private capacity, and is a competent witness as other citizen of the country.

9. It is admitted by the complainant in his statement before the Disciplinary Committee that Said Rehman and others defendants in produce suits titled Haji Nadar Khan and others v. Said Rehman and others, are the tenants of the father and uncle of the respondents and these cases are still pending in the Revenue Courts at Takht Bhai and the respondent/Advocate is the opposite counsel of the complainant. Thus the complainant admittedly is having malice and grudge against the respondent/Advocate and on that ground out of sheer prejudice and malice has filed the instant complaint. The Advocate enjoys a very high position in the society and if dragged into frivolous litigation and complaints of professional misconduct of this nature by the opposite‑parties, it will definitely damage the image of the legal profession and shall also cause to shatter the confidence of the clientele of the Advocates and will thus curtail the independence of the legal profession. Keeping in view the above legal and factual aspects of the case, we find that the present complaint being without any substance is liable to be dismissed and while dismissing the same, we impose costs of Rs.500 on the complainant. He is directed to deposit the costs with the Secretary, N.‑W.F.P. Bar Council, Peshawar. The same will be payable to the respondent/Advocate under a proper receipt. A.A./201/B.T/N.‑W.F.P. Complaint dismissed.