P L D 1959 (W (PLP)

Date of hearing : 11‑10‑

58. This is an application under section 36 of the Legal Practi tioners Act by the Bar Association, Gujranwala, praying that the order of the District Judge, Gujranwala, refusing to put Nazar Muhammad respondent on the list of touts be set aside and that the respondent be put on the list of touts.

2. On the 26th of April 1955, the Bar Association, Gujranwala, had passed a resolution in accordance with section 36 (1) of the Legal Practitioners Act to the effect that the respondent had the reputation of a tout. A copy of the reso lution was sent to the District Judge, Gujranwala who referred the matter for inquiry to the Senior Civil Judge, Gujranwala. Before the Senior Civil Judge the Bar Association led evidence to prove that the resolution was passed in accordance with the rules of the Bar Association. The respondent led evidence to show that he was a man of means and status. He also led evidence to the effect that he had been a lawyer's clerk for some time and that his name had not yet been removed from the list of clerks. By this he wanted to establish that he had not been guilty of any misconduct as a lawyer's clerk. He produced Mahmood Ahmad, clerk of the Sessions Court, Gujranwala, who deposed that the respondent was on the list of assessors for the year 1955 and also on the list of clerks compiled by the Bar Association, Gujranwala, in 1950. He produced Maqbool Rabbani, Head Clerk of the office of the Deputy Commissioner, to show that he was appointed District Darbari by the Government. The Secretary of the Marketing Committee, Gujranwala, was produced to state that the respondent, along with one Muhammad Hussain, had taken out a licence from the Marketing Committee in the year 1951 which expired in March 1954. Evidence was led also to show that the respondent was working as a clerk with Hakim Muhammad Hasan Jafri, Advocate, for the year 1950‑51, but Muhammad Hasan Jafri had to dispense with his services on account of a resolution in 1951 by the Bar Association declaring the respondent to be a tout. That resolution had been forwarded to the District Judge in order that the respondent may be declared a tout, but no action was taken on that resolution on account of some defect in the service of the notice of the resolution on the Members of the Bar. Some witnesses were produced who stated that the respondent was the owner of a large area of land and that he had a good reputation in his own village. The respondent also relied before the Senior Civil Judge on the fact that he had in his capacity of Lambardar attested a memo. of recovery prepared in a challan case against Khwaja Mati Ullah, Advocate, suggesting that it was on account of the enmity with Khwaja Mati Ullah that the resolution had been passed. The learned Senior Civil Judge rejected this plea, pointing out that there was not the slightest evidence to show that Khawaja Mati Ullah was in any way responsible for the passing of the reso lution.

3. The learned Senior Civil Judge found that there was good evidence against the respondent on account of the resolution, which evidence was not rebutted by the material brought on the record by the respondent. He observed that not a single witness of the respondent had stated that the respondent had not the reputation of a tout.

4. When this report was submitted to Sh. Muhammad Akbar, the learned District Judge, the respondent, probably on account of the observation of the learned Senior Civil Judge that not a single witness had stated that he had not the reputation of a tout, requested him for permission to lead further evidence and he was allowed to do so. The respondent produced Hakim Muhammad Hasan Jafri, Advocate, with whom he had worked as a clerk. Hakim Muhammad Hasan Jafri deposed that the conduct of the respondent during the time that he served with him was not open to any objection. He stated too that he had protested to the Bar Association when the first resolution was passed against the respondent that the proceedings taken were not regular, but in order not to displease the members of the Bar he had dispensed with the services of the respondent. The respondent also produced Mr. Manzoor Shahid, Advocate, who was the Secretary of the Bar Association, in order to prove that three resolutions had been passed against him by the Bar Association declaring him a tout. (I may observe here that I am unable to see why this evidence was produced by the respondent.) Muhammad Yaqub, Pathan, a Zamindar of village Naroke, deposed that the respon dent was in his service since March 1952 as a Munshi on, a salary of Rs. 100 per mensem, plus board and lodging, and that he was an honest man. Dost Muhammad. Lambardar of village Madho Khalil, deposed that the respondent had not the reputa tion of a tout and that the respondent was the owner of five squares of land in village Khabki. Chaudhri Nazir Ahmad, Lambardar, also stated that the respondent had not the reputation of a tout. Some further evidence was produced to which is not necessary to refer.

5. The learned District Judge held that the resolution passed by the Bar Association had been sufficiently rebutted by the evidence produced by the respondent. After going through the reasons recorded by the learned District Judge, there is little doubt in my mind that the order is wrong. What the learned District Judge should have considered is whether the evidence produced by the respondent was such as could really counter balance the evidence furnished by the resolution. Though the learned District Judge said that the evidence of the resolution was rebutted by the evidence produced by the respondent, he appears to have said this only for a formal compliance with the law for he has made observations from which it is clear that according to him the resolution itself, unless it was aided by further material, was not sufficient proof of the reputation of the respondent at all. I quote below the relevant portions of his judgment, he begins by saying :‑ "Not a single complaint was received in this Court either by or on behalf of any member of the Bar Association that the respondent acted as a tout in any case. During the last one and a half years, no complaint was received from any litigant public that the respondent acted as a tout anywhere or that he had exhibited any obnoxious conduct regarding any case pending anywhere. Thus the respondent will be deemed to have succeeded in substantiating the objections which he raised in this Court". It is impossible to agree this reasoning. Why should there be a complaint to the District Judge by an individual member of the Bar Association and is it necessary before a resolution of the Bar Association can be regarded as evidence that there should also be complaints by the public to the District Judge that the person concerned is a tout ? The learned District Judge goes on to say :‑ "If the Bar Association were to bring on record before me even a single instance of a case in which the respondent had actually acted as a tout, I would have considered the aforesaid resolution of the Bar Association as a presumptive piece of evidence for declaring the respondent a tout, but in spite of specific opportunity having been given to the Association they did not cite even a single such case. Secondly, no member of the Bar Association has come forward to state on oath before me that the respondent had acted as a tout in any matter, Thirdly, no member of the Bar has run the risk of giving a statement on oath to the effect that the respondent has a bad reputation. Thus, there is not a scintilla of evidence before me to prove either that the respondent acted as a tout in any case or that he has the reputation of being a tout". This shows quite clearly that the learned District Judge does not regard the resolution itself as good evidence unless a specific instance is quoted. The learned District Judge has altogether misunderstood the effect of the Explanation to section 36 (1). The passing of the resolution is by itself evidence that the person mentioned in the resolution has the reputation of a tout. It is not at all necessary that the resolution should be supported by proof of instances. The reason for the enactment of this explana tion is that evidence of specific instances is almost impossible to produce. Who can give evidence of such an instance? Only the lawyer who paid the money or his clerk. For obvious reasons neither of them would ordinarily be prepared to give such evidence. As regards the remark that no member of the Bar had made a statement on oath about the respondent's reputation, I do not see how the learned District Judge could for this reason have refused to act on the resolution. The Bar Association had passed a resolution and they may have considered further evidence unneces sary. In any case the resolution was good legal evidence without further corroboration. The learned Judge was of the opinion that there was no evidence before him with respect to the reputation of the respondent. He even criticised the report of the learned Senior Civil Judge on the ground that he had only considered whether the respondent had not been able to rebut the evidence supplied by the resolution. He observed : "The learned Senior Civil Judge did not call upon the Bar Association, Gujranwala, to cite even a single instance of the misbehaviour of the respondent": The learned District Judge also seems to have been under the impression that the Bar Association is to act as a Court of Inquiry, that it should record evidence and reach con clusions as to whether a certain person is a tout, and that it is only after an enquiry that a resolution is to be passed, for he B said : "While passing the resolution the Bar Association did not call upon the respondent to clear his position. The Association did not record any evidence in presence of the respondent giving any instance of misbehaviour". There is no such requirement under the law. The numbers of the Bar Association passed the resolution on account of their own personal knowledge of the reputation of the respondent.

6. A resolution passed by the Bar Association being evidence of general repute, should be acted upon, unless there was on the other side evidence which either positively proved that the person concerned had not the reputation of a tout or at least created a reasonable doubt as to whether he had such reputation. There is no such evidence in the present case on the record. Statements of two or three Zamindars to the effect that the respondent had not the reputation of a tout can hardly rebut the evidence of the resolution of the Bar Association. It is the members of the Bar who know best whether a person has the reputation of a tout and also the Zamindars produced by the respondent may just be trying to help him. The members of the Bar Association ought to be believed unless there was some good reason for not doing so. I have no hesitation in repelling the suggestion that because the respondent had in 1943 signed a recovery memo. as a Lambardar, in a case of conterfeiting of currency notes, against Khawaja Mati Ullah, Advocate, and had later appeared as a witness against him, the members of the Bar had conspired to declare him a tout although they did not believe that he had the reputation of a tout. There is no evidence at all that Khawaja Mati Ullah is in any way responsible for the passing of the resolution and very strong evidence would be recorded to show that the members of the Bar were proposing to declare the respondent a tout, although he was not so, just at the asking of Khwaja Mati Ullah.

7. I find that the respondent has been proved to have the reputation of a tout and I direct that his name be placed on the list of touts. K. B. A. Petition accepted.