1995 PLP 1982 (MLD)

Fazal‑i‑Haq Abbasi for Respondent. Date of hearing: 21st May, 1995. MUHAMMAD YOUNUS KHAN TANOLI (MEMBER).‑‑‑Brief 'facts of the case are that Dr. Nazir Khan Afridi, appellant before us, had submitted an application dated 22‑2‑1993 to the Secretary, N.‑W.F.P. Bar Council alleging therein that in a civil suit filed by him and titled as Dr. Nazir Khan v. Principal, Ayub Medical College, Abbottabad, the respondent, who was engaged as counsel by the Principal, Ayub Medical College, Abbottabad, had become personal against him and had attempted to damage his career. He further alleged that in a case registered under sections 419, 420, 467 and 471, P.P.C. read with C.M.L.O. 77 vide an F.I.R. No.585 dated 4‑9‑1984 registered at P.S. Cantt., Abbottabad, the respondent was convicted by the Special Military Court., No.5, Peshawar and sentenced to 14 years' rigorous imprisonment and a fine of Rs.6,00,000 with fifteen lashes. The sentence was, however, subsequently remitted on appeal by the Governor, N.‑W.F.P. on 8‑3‑1987. On the above allegations, the complainant prayed that action be taken against the respondent and his name be struck off from the roll of Advocates. In response to the notice of above application served on the respondent, he submitted his written reply wherein he contended that he, as duly engaged counsel of Ayub Medical College, had performed his duties honestly and has not committed any professional misconduct. He further contended that, in fact, he was approached by the complainant and was asked to either help him in the case or to persuade the college authorities to accept his claim but, he had refused to oblige him. Regarding his conviction by the Special Military Court, the respondent submitted that the case was registered against him when he was in the United States of America. He further submitted that he was convicted under M.L.R. 31 for non‑appearance before the Court and not in the main case. He further submitted that his sentence was subsequently remitted on 8‑3‑1987 and a notification to that effect was also published in the daily Pakistan Times of 27th September, 1988. The copy of the notification remitting his sentence also shows that the trial in the main case was not held on medical grounds. After receipt of written reply of the respondent, the case was referred to the Disciplinary Committee of the N.‑W.F.P., Bar Council. The complainant was called upon by the said committee to produce evidence in support of his allegations. The respondent had failed to appear before the committee and was proceeded against ex parte. The complainant produced Abdul Razzak, L.H.C. No.751 P.S. Cantt., Abbottabad to prove the registration of case against the respondent vide F.I.R. No.585 of 1984 registered at Police Station, Cantt., Abbottabad. Mr. Saadat Hussain Assistant Superintendent, Central Jail, Haripur was produced as P.W.2 to prove that the respondent was sent to Central Jail, Haripur on 30‑10‑1985 after his conviction by the Special Military Court No.5, Peshawar. Mr. Muhammad Tariq Afridi, Advocate, Special Attorney of the complainant appeared as P.W.3 before the Disciplinary Committee. He deposed that he was the brother of the complainant. Apart from supporting the charges made in the complaint against the respondent, he also levelled new charges in his statement against the respondent. He deposed that the complainant, apart from having filed a suit in connection with his appointment as Assistant Professor Cardiology, had also filed a suit to the effect that he was entitled to get the copies of certain documents, which were public documents, in possession of Ayub Medical College, Abbottabad and had prayed that the defendant in the case be directed to provide him the copies of the said documents. He further deposed that the respondent had submitted a false affidavit in the Court to the effect that except the documents effect that except the documents, copies whereof were already submitted in the Court, no other document was in possession of the defendant. However, the documents which were initially held back were subsequently produced in the Court of Additional District Judge, Abbottabad by the respondent. He also deposed that the complainant wanted his cases to be disposed of at the earliest, but the respondent resisted these efforts and made attempts to get the case transferred from one Court to another with a view to delay the proceedings of the case. He further deposed that the Court of District Judge, Abbottabad had once termed the attempt of respondent for getting the case transferred from one Court to another as illegal and contemptuous. He prayed that strict action be taken against him and closed the evidence on behalf of the complainant. On 24‑11‑1994, the Disciplinary Committee of the N.-W.F.P. Bar Council, after going through the record of the case, came to the conclusion that no case of misconduct was made out against the respondent and accordingly rejected the complaint and ordered that the case be filed without further proceedings in the matter. The complainant has now come in appeal under section 41(5) of the Legal Practitioners and Bar Councils Act, 1973 before this Tribunal against the order of Disciplinary Committee with the prayer that the same be set aside and the Disciplinary Committee be directed to proceed against the respondent in accordance with law. Mr. Tahir Hussain Lughmani, Assistant Advocate‑General, Mr. Abdul Samad Khan, Advocate, counsel of the appellant and Mr. Fazal‑i‑Haq Abbasi, Advocate, counsel of the respondent alongwith respondent himself present. We have heard the arguments and also perused the record of the case. So far as the charge of conviction of respondent by the Special Military Court is concerned, although the respondent was convicted under MLR 31 and not in the main case but the said conviction was also remitted as far back as on 8‑3‑1987. The said conviction cannot be made a ground for disciplinary Proceedings against the respondent. All the other charges against the respondent pertain to his attitude and conduct in relation to the proceedings of a civil suit. It may be pointed out that Rule 6.1 of the N.‑W.F.P., Legal Practitioners and Bar Councils Rules, 1974 requires that charge or charges against the Advocate should be clearly contained in the complaint. In the present case some of the charges do not find mention in the original complaint but were introduced subsequently in the statement of the Special Attorney of the complainant/appellant. Although no new case could be built up on pleas which were not raised or urged in the complaint but we have still heard the learned counsel of the appellant on the said pleas and allegations. His contention was that the respondent had filed false affidavit in the civil suit, had attempted to mislead the Court and had become personal against the complainant and tried to damage his career, therefore, he was guilty of misconduct and had, thus, rendered himself liable to disciplinary action under the Legal Practitioners and Bar Councils Act, 1973. We are unable to agree with the contentions urged before us by the learned counsel of the appellant. The charges made against the respondent are matters related to the proceedings of the civil suit and only the Court which was seized of the case could form any opinion or give findings on the basis of evidence and other material before it as to whether the respondent had filed any false affidavit, had made any attempt to mislead the Court or had, otherwise, done anything which amounted to misconduct and to take such steps as it considered appropriate. This Tribunal has no jurisdiction to sit over the proceedings of the civil suit and to discuss the merits or demerits of the case and to give findings on the respective pleas of the contesting parties or the conduct and attitude of the counsel in the case. The complainant has failed to make any case of misconduct against the respondent and the Disciplinary Committee has rightly rejected the complaint filed against the respondent. There are no merits in this appeal and the same is, therefore, dismissed. AA./1811/P. Complaint dismissed.