P L D 1960 Supreme Court (Pak (PLP)

(1) that a Judge who was removed from the Allahabad High Court in 1949, was allowed to practise in the Federal Court of India, which " did not take any disciplinary action against him " ; (2) that the actions in question took place some five years ago ; (3) that this misbehaviour did not relate to his " conduct as a lawyer as such " ; (4) that he had practised at the Bar for over 25 years and his conduct had never previously been called in question ; (5) that the misbehaviour found does not render him " unfit morally to perform the functions of a lawyer " ; (6) that he, as an Advocate, would not be called upon to perform the functions of a solicitor ; and (7) that to the best of his knowledge disciplinary action has never been taken against an Advocate " either in England or in India or in Pakistan on such ground ". Mr. Mahmud Ali supporting the submissions of Mr. Akhlaque Hussain was unable to substantiate the allegation regarding the Allahabad Judge by any proof. We find from the published report of the order of dismissal that the grounds of dismissal of the Allahabad Judge were totally different from those found against Mr. Akhlaque Hussain. No guidance is to be found in that case for determining the appropriate action in this case. The misconduct which the Court found against Mr. Akhlaque' Hussain was in respect of two charges. One of these charges related exclusively to his conduct as a Judge, during a period of duty as Chairman of an Election Petitions Tribunal. It was found that he had exercised his powers, as Chairman, of arranging his tours, and as Controlling Officer over his travelling allowance and daily allowance bills, in such a manner as to gain the maximum profit for himself regardless of the neces sities of the cases before him and the convenience of the parties thereto. An occasion of that kind does not commonly arise in the career of a lawyer, but it is not inconceivable that a lawyer may be placed in the same position as was Mr. Akhlaque Husain, since lawyers are qualified for appointment to such tribunals and therefore, while we do not find it necessary to take this piece of misconduct into account in deciding the present matter, we must not be understood to hold that such misconduct is entirely beyond the purview, when the question arises whether an enrolled Advocate of this Court has been guilty of conduct " unbecoming an Advocate ". The other charge of misconduct upon which Mr. Akhlaque Husain was found guilty is directly related to his conduct as a member of the legal profession. Briefly, it was found that in two income-tax assessment years preceding his elevation to the High Court, Mr. Akhlaque Husain was engaged as counsel in certain lengthy proceedings on behalf of the Wah Cement Works. From the outset, it was clear that the fees he was to get would run into lacs of rupees. In actual fact the total for the two years in question was found to be approximately four lacs of rupees. It was found by the Court that in order to minimise the income-tax deduction, he practised a fraud in which he involved seven other lawyers all of whom were in a very ordinary, way of practice. A deed of partnership was executed in which the shares were specified and registration of the partnership was obtained in the first assessment year upon the allegation that the shares of the partners had been paid. In fact, no part of the fee was paid to any of the partners, but Mr. Akhlaque Husain either advanced to them or reimbursed them, the sums which were assessed as income-tax upon the shares of the alleged partnership income, which they were declared to have received. Tnereby the income-tax claim was reduced by, it may be, over a lac of rupees. When the income tax statements were submitted for the second year of the so- called partnership, Mr. Akhlaque Husain was already a Judge, and in that capacity, he moved for renewal of the partnership registration and directed all the other operations which were necessary for the successful operation of the scheme for defrauding the income-tax. Again, a very large " saving " of income-tax was thus effected. Mr. Mahmud Ali attempted to argue that these proceedings did not " relate to conduct as a lawyer as such ". This he could not do with any hope of success, for when the scheme was devised and put into operation, Mr. Akhlaque Husain was a lawyer. The scheme related exclusively to, lawyer's fee, and every person involved in it was a lawyer. The Court found against Mr. Akhlaque Husain that he had corrupted the other seven lawyers by drawing them into the scheme which he devised and operated for his own personal benefit. It does not seem to us to be at all material that this fraud was perpetrated five years ago. Having been operated c under forms of legality, it was necessarily difficult of detection, and therefore the interval of time between the perpetration and the discovery is of no importance. It is impossible to argue that such a fraud does not involve moral turpitude of a character such as renders it doubtful whether the operator is fit to perform the functions of a lawyer. It seems wholly immaterial in the context that Mr. Akhlaque Husain as a barrister will not be called upon to perform the functions of a solicitor. Nor do we consider it of any importance that action on grounds such as have been found against Mr. Akhlaque Husain or similar grounds, either does or does not appear to have previously been taken in the three countries mentioned by him. At the instance of the Court the proceedings were attended by the Attorney-General of Pakistan, the Advocate-General of West Pakistan and a lawyer Maulvi Mushtaq Hussain on behalf of the Bar Council. We had the advantage of hearing addresses from each of these learned counsel. The Attorney-General was inclined to take a very severe view of Mr. Akhlaque Husain's deserts. He presses for the permanent removal of his name from the roll of Senior Advocates of this Court and that the case should be reported to the High Court of West Pakistan. The Attorney-General went further in suggesting that the case should be referred to the appropriate Inn of Court in England of which Mr. Akhlaque Husain is a member. The Advocate General of West Pakistan and Maulvi Mushtaq Hussain, though they conceded that the misconduct found against Mr. Akhlaque Husain on the income-tax charge was of a very serious nature, thought it appropriate to mention that he had already suffered very greatly in consequence of that misconduct in having had to undergo an enquiry which has resulted in his removal from the Bench of the High Court, and has entailed a great many other disadvantages. On this ground, they submitted that the Court should take a lenient view of the case. Maulvi Mushtaq Hussain even suggested that, having called him to account, the Court should be content not to take any further action against him. The duty resting upon the Court in this matter is onerous and highly responsible. It was an extremely unpleasant task to find, as the Court was obliged to find upon the evidence, that Mr. Akhlaque Husain as a lawyer and as a Judge had been guilty of so great a fraud in regard to his income-tax. The present duty is by no means less unpleasant. We are conscious of the extent of the difficulty and distress which the enquiry against him and its consequences have undoubtedly entailed. But we have a duty also towards the body of lawyers upon whose assistance we rely so greatly for the due, proper and honest dispensation of justice in this Court, to maintain in that body the highest standards of integrity. That is necessary not only for the purpose of securing complete probity and thorough correctness of behaviour according to the highest standards in the Bar of this Court, but also for the protection of the interests of the public for which this Court is the last resort of justice. Therefore, we consider that we would be failing in our duty if we allowed the present occasion to pass without exercising our disciplinary powers. Yet, being conscious that over a period of time, by a firm purpose of amendment and by rigid adherence to the high principles governing the conduct of lawyers in the field of the adminis tration of justice, with which principles we feel no doubt that Mr. Akhlaque Husain is fully familiar, his guilt may well be purged, we do not propose either to disbar him permanently or to undertake the gratuitous task of referring his case to the inn of Court to which he belongs. Nor is a reference to the High Court of West Pakistan necessary, since he is bound by the undertaking he gave when he assumed the office of Judge of that Court that after leaving it, he would not practise in that Court or any Court subordinate thereto. The order of the Court is that the name of Mr. Akhlaque Husain shall be removed from the roll of the Senior Advocates of this Court, but that he shall be permitted to apply for reinstatement upon that roll after the expiry of one year from the date on which his removal from the Bench of the High Court of West Pakistan took effect. We make no order as to the costs of these proceedings. A. H. Order accordingly