P L D 1955 Sind 36 (PLP)

CONSTANTINE, C. J.-On 4th December, 1950, the Secretary, Ministry of Law, brought to the notice of Tyabji, C. J., a copy of a letter alleged to be written by Mr. S. A. Rafique to the Pakistan Embassy at the Hague. This letter was dated the 14th September, 1950, and is in the following terms :- " I am enclosing herewith particulars about myself and the firm of lawyers of which I am the head. I shall be most grateful if you will kindly bring our name and work to the notice of Trade Mark Agents, Patent Attorneys, Chambers of Commerce and Industries and the Commercial Community of Holland. I may also add that I have the honour of having been appointed honorary legal adviser to the French for Embassy, the Italian Legation, the Belgian Embassy and the Australian High Commissioner here in Karachi. You may if necessary refer to Mr. Ikramullah, Secretary for Foreign Affairs in the Government of Pakistan in Karachi, for particulars about me, as, he has known me since the days I was studying at Cambridge with him." On 22nd February, 1951, a copy of another letter was forwarded by the Secretary, Ministry of Law, alleged to be written by Mr. Rafique to the Trade Commissioner in Italy, bearing the same date, and couched in the same terms. On 22nd February, 1951, the Registrar wrote to Mr. Rafique stating that it had been brought to the notice of the Hon'ble the Chief Judge that he had addressed these two letters which appeared to amount to solicitations for legal work and appear to be intended to advertise him in his professional capacity, and calling for his explanation. On the 3rd March, 1951, Mr. Rafique made his submission. In the course of this sub mission, at various places, are admissions that he had sent these letters. The Registrar of the Chief Court by his letter dated 16th August, 1951, forwarded the paper to the Bar Council under section 10 (2) of the Bar Council's Act and at the same time informed the Secretary of the Bar Council that the Hon'ble the Chief judge had constituted a Tribunal consisting of Mr. Sadik as President and Mr. Tufailali and Mr. S. M. Sohail as members. This Tribunal held its first meeting on 7th September, 1951, and continued until Messrs Sadik and Tufailali resigned. The Chief judge accepted their resignations on 6th October, 1952 and appointed another Tribunal consisting or Mr. Justice Muhammad Bux as President and Mr. Hassanally A. Rehman and Mr. Castellino as members. Upon the report of the Secretary of the Bar Council, Mr. Justice Muhammad Bux reported that Mr. Castellino was 'not a member of the Bar Council owing to the fact that the Bar Council purported to nominate him as a member under a power of nomination exerciseable only in the case of casual vacancy. The Chief Judge on 14th January, 1954, vacated his previous orders on the ground that the Tribunal had been improperly constitut ed and he appointed Mr. Justice Muhammad Bux as President and Mr. Hassanally and Syed Riaz Ahmad as members of the third Tribunal. The first Tribunal recorded the evidence of an Assistant Secretary in the Ministry of Law who produced documents C-1 to C-4, and the evidence of Mr. Naqvi who was led to prove the signatures on Exhs. . C-5 and C-7, the letters to the Trade Commissioner in Holland and in Italy. This witness said he was unable to say that he definitely recognized the signatures. A third witness was examined who identified the signature on a letter of Mr. Ikramullah. Mr. Dar, a witness on behalf of Mr. Rafique, was also examined. He was not asked regarding the signatures on Exhs. C-5 and C-7. The Tribunal on 8th September, 1952, by an order at page 129 of the paper-book stated that they did not think It would be relevant to establish that Mr. Rafique was the legal adviser of various embassies including those mentioned in his letter to the Trade Commissioners. The Tribunal also held that the contents of Mr. Ikramullah's letter were beside the point and that the letter could not be looked at for the purpose of proving the truth of its contents. The second Tribunal which was void of jurisdiction examined Mr. Rafique apparently under section 165 Evidence Act. Mr. Rafique there stated that he was doubtful if Exhs. C-5 and C-7 bore his signatures. The third Tribunal met on 30th. January 1954. Mr. Rafique stated that he wished to examine 2 or 3 witnesses, but on the next date 6th February, 1954, Mr. Rafique stated that he did not wish to examine any evidence. Arguments were heard and the case was reserved for orders. On the 18th the members met to consider the order, and on the 24th of the same month notice was issued to Mr. Rafique to attend on the 27th. On the 27th there is an order of the Tribunal to the effect that Mr. Jamil Alam for the com plainant had relied upon rule 2 of the rules framed under section 15-A of the Bar Council's Act but the Tribunal had had their notice drawn to rule 1 of these rules. Secondly, they proposed to examine Mr. Rafique further on the point whether he was an honorary legal adviser to the four Embas sies mentioned in the letters written by him. They stated that the case was adjourned to 5th March, 1954, and that they were prepared to give a longer date,' but Mr. Ashraf for Mr. Rafique insisted on 6th March, 1954, ' and it, was pointed out that it should be understood that no further time would be allowed. On. 6th March, 1954, the members were present, but both Mr. Rafique and his advocate were absent. The Tribunal considered that their absence was deliberate and not excusable. The finding of the Tribunal was written and signed on 10th March, 1954. The Tribunal relied upon the letter of explanation written by Mr. Rafique on 3rd March, 1951, to the Registrar of the Chief Court and also upon the examination of Mr. Rafique on oath, and held that upon the first point involved, namely, whether Mr. Rafique wrote the letters in question, this had been proved. The Tribunal on the second point, whether the letters amounted to professional misconduct, held that they were undoubtedly intended to advertise the sender in his professional capacity and to canvass legal work, and that this amounted to professional misconduct within the meaning of rule (1) of the rules framed under section 15-A of the Act. The Tribunal apparently considered that the burden of proving that he was an honorary legal adviser rested on Mr. Rafique and that he had not discharged the burden, and were of opinion that no document existed appointing him as an honorary legal adviser. The Tribunal in its procedure is bound by the rules framed under section 12(1) of the Bar Council's Act. The inquiry by the Tribunal shall as far as possible be conducted as any action or proceeding before the Court exercising civil jurisdiction in British India. There are various special provi sions which are immaterial. The evidence which the Tribunal relied upon for its finding that Mr. Rafique signed and sent the letters, is contained in his explanation to the Registrar and his examination by the second Tribunal. The proceedings before the second Tribunal were without jurisdiction, and it appears to us that the third Tribunal was not entitled to rely upon this examination: There is nothing on record to spew that Mr. Rafique's explanation to the Registrar had been brought on record, or that he had been asked to admit this explanation. The finding on the first point is therefore unsupported by evidence. Mr. Rafique, who argued on his own behalf, submitted that the Chief judge had no power to appoint a second or third Tribunal excluding Mr. Sohail who had not resigned. This argument was not supported by Mr. Sohail who appeared for the Bar Council or by the Advocate-General, and we consider that it is untenable. The law has provided that a Tribunal of three persons shall conduct the inquiry and if that Tribunal ceases to exist, the Chief judge is at liberty to appoint another Tribunal consisting of any three qualified persons whom he may select. Mr. Sohail argued that though the constitution of the third Tribunal was valid, yet its proceedings were invalidated by the fact that after the Chief Judge constituted the third tribunal, the papers were sent not through the Bar Council as directed under section 10 (2) but direct to the President of the new Tribunal. We think that this procedure was a mere irregularity which has caused no failure of justice. Neither the Act nor the rules provide any function of the Bar Council other than that of merely forwarding the papers to the President of the Tribunal. Mr. Sohail argued that the Act contemplates that the Bar Council should be consulted by the Chief judge in selecting the members of the Tribunal. The Act lays this duty upon the Chief judge and there are no words directing him to consult the Bar Council, whereas it is expressly provided that, before sending a complaint to a District Judge, the Chief judge shall consult the Bar Council. Mr. Sohail argued that the Bar Council had no opportu nity for consultation when the papers were sent by the President to the Secretary of the Bar Council Mr. Riaz Ahmad and forwarded by him to this Court on apparently the same date. It appears to us that the President of the Tribunal was justified in addressing the papers to the Secretary of the Bar Council and that this Court was justified in receiving the papers from the Secretary of the Bar Council by the wording of the section. For communications to and from the Bar Council are sent in the name of the Secretary, and persons dealing with the Bar Council are entitled to assume that the Secretary is the correct channel of communication. There is nothing on record to show whether the Secretary of the Bar Council acted within or without his powers ; this is a matter of internal organisation and routine of the Bar Council with which this Court is not concerned. Under section 12 (4), we have the power to refer the case back for further inquiry to the Tribunal through the Bar Council. Mr. Rafique has argued that he has been harassed for nearly four years. There are, however, ample indications on the record that Mr. Rafique is largely responsible for the slow progress of this case. He has taken advantage of a bare technical defence and we have no sympathy with his appeal ad miserisordium. In view of the first Tribunal's orders that the contents of Mr. Ikramullah's letter in which he denied that he would have been willing to act as a reference for Mr. Rafique were irrelevant and in view of the fact that the third Tribunal did not take up this point, we consider no inquiry upon the contents of Mr. Ikramullah's letter should be" allowed at this stage. Again since the first Tribunal ruled out as irrelevant the question of Mr. Rafique's having acted as honorary legal adviser, we also think that there should be no further inquiry upon this point. We, however, consider that further inquiry should be made into the point whether Mr. Rafique signed or was responsible for the despatch of Exhs. C-5 and C-7, and whether, if so, he committed misconduct within the meaning of section 10 (1) of the Bar Council's Act. We accordingly return the case back to the Tribunal for further inquiry and finding on the question above-stated. A. H. Case returned for further inquiry.