2004 PLP 140 (MLD)

Jamil Qamar for the State. MUHAMMAD ALAM KHAN, MEMBER.‑‑‑On 10‑3‑2001 complainant Roidad Khan son of Yasin Khan filed a complaint in the N.‑W.F.P. Bar Council against Mutabbar Khan Advocate son of Nasir Khan resident of Sultan was Tehsil Dugger District Buner, .alleging therein that the respondent had under the garb of advocacy got executed an agreement dated 11‑7‑2000 respecting certain landed property for an agreed amount of Rs.2,75,

000. That after the lapse of some time the respondent offered to the complainant that the complainant should pay Rs.10,000 as profit and the land will be returned to the complainant. That on this understanding the complainant collected an amount of Rs.2,75,000 as loan from his Kith and Kin and requested the respondent to take back the money and return the land. It is further alleged in the complaint, that on this, the respondent intimidated him and threatened the complainant for dire consequences. Later on the respondent sold the land to Abdul Majeed etc. Sons of Rashid Khan and kept the sale consideration of Rs.2,85,000 which was belonging to the complainant. It is averred in the complaint that the respondent taking undue advantage of his position as an Advocate had betrayed the trust which the complainant has reposed in him. So it was prayed that as the respondents has committed a professional misconduct which is unbecoming of a counsel and strict legal action under the law was prayed for.

2. The Disciplinary Committee of N.‑W.F.P. Bar Council initiated the proceedings and the respondent submitted his detailed written statement dated 5‑7‑2001 in which besides the factual objection it was submitted that the allegations contained, in the complaint does not amount to a professional misconduct, as there was no jural relations of counsel and client between the parties, the Bar Council has got no jurisdiction to entertain the instant complaint as the allegations in the complaint amounts to civil liability. However the sale as alleged in the complaint was admitted.

3. The respondent participated in the proceedings but however, on 18‑8‑2001 he was absent so the learned Members of the Disciplinary Committee initiated ex parte proceedings against the respondents and after recording the ex parte evidence referred the matter for final adjudication to this Tribunal vide Reference dated 11‑8‑2001.

4. On 29‑3‑2003 the matter came for consideration before this Tribunal and the complainant submitted an application for withdrawal of the complaint on the ground that he had patched up the matter with the respondent. On 29‑3‑2003 the application was placed on file and his statement could not be recorded as the complainant was not in possession of his National Identity Card and nobody was there to identify him, so the matter was adjourned for today. However, the respondent was asked to consider the point that whether the professional misconduct could be legally withdrawn on the basis compromise or not.

5. Today the statement of the complainant was recorded supported the contents of the withdrawal application and admitted that the entire amount mentioned in the complaint has returned by the respondent and to this extent the grievances of the complainant have been redressed.

6. On legal aspects we have heard the respondent as well as the learned Additional Advocate‑General Government of N.‑W.F.P. and have gone through the case file minutely.

7. Regarding the question of non‑existence of jurisdiction of the N.‑W.F.P. Bar Council, under section 41 of the Legal Practitioners and Bar Councils Act 1973, it is not only the professional misconduct but as well as other conduct of an Advocate which can be probed into by the Disciplinary Committee of N.‑W.F.P. Bar Council as well as this Tribunal. The misconduct need not be the direct result of violation of jural relations of counsel and client; but even if, it has remote nexus with the profession of an Advocate, as in the present case under the garb of advocacy and relation of trust the agreement was executed and the suit amount extracted from the complainant, will definitely amount to a conduct unbecoming of a counsel. Reliance in this respect is placed in re in the matter of Barrister/Advocate reported in AIR 1934 Lahore page 251 (G).

8. The question of withdrawal of the complaint of professional mis conduct came for consideration before the Punjab Bar Council Tribunal in a case titled Muhammad Amin v. M. Asghar Kokar Advocate, reported in 1992 CLC page 1556 wherein his Lordship Mr. Justice Irshed Hassan Khan the learned Chairman of the Tribunal, as he then was, held that even if the parties enter into a compromise and the respondent accused undertake to return the money the same will not wash away the stigma of misconduct committed by him. Furthermore, even, the withdrawal of a complaint will not exonerate the respondent. because in a case of misconduct no withdrawal can exonerate the respondent. However, the same can be taken as mitigating circumstances while determining the quantum of punishment. The case of Asghar Kokar referred to above has consistently been followed in Irshad Khan v; Gohar Rahman Khatak Advocate reported in 2000 MLD page 1264, Wajid v. Zafar Khalid Advocate reported in 2000 MLD page 1275 and Ali Rehman v. Zaheer ud Din Baber Advocate reported in 2001 MLD page 895 and Mst. Surraya Begum v. M. Adam Advocate reported in 2002 CLC 1931 so the application for withdrawal is rejected.

9. In view of the facts and circumstances narrated above, we fine the respondent guilty of professional misconduct but in view of the written compromise take a lenient view of the matter and reprimand him is directed to be careful in future and to maintain the dignity of the profession both within and outside the Court with costs of the amounting to Rs.5,000 (five thousand) payable to the N.‑W.F.P. Bar Council Peshawar. The respondent is directed to deposit the cost within 30 days from today with the Secretary N.‑W.F.P. Bar Council failing which the same will be recovered through the process of C execution by the learned District and Sessions Judge Buner at Dugger under the provisions of section 44 (3) (B) of the Legal Practitioners and Bar Councils. Act 1973. H.B.T./860/P Order accordingly.