2002 PLP 11 (MLD)

Respondent in person. MUHAMMAD ALAM KHAN (MEMBER). ‑‑‑This single judgment will dispose of Complaint No.T/3 of 1994 and Complaint T/6 of 1995, both titled Qamar Zaman Shinwari v. S. Nadir Shah Gillani, Advocate as both pertains to professional misconduct, in which parties are the same and common legal and factual questions against the respondent are involved. On 10‑6‑1993 Qamar Zaman Shinwari complainant filed a complaint in the N.‑W.F.P. Bar Council Peshawar, alleging therein that the respondent namely S. Nadir Shah, Advocate was serving in the Education Department as Theology Teacher since 1974. Since then, he is in active Government service and is posted as such in Government High School No.4, Kohat. He is receiving salary from Education Department and at the same time secured the Law Degree during his tenure of service. It is further alleged in the complaint that his apprenticeship period of six months was also completed by him while he was in service. Further allegations in the complaint are that the said respondent is involved in criminal cases under sections 468/471, P.P.C. read with section 5(2), Prevention of Corruption Act and section 182 of the Pakistan Penal Code which are still pending trials in a competent Court of law awaiting its decisions.

2. The Complaint No.T/6 of 1995 has also been filed by Qamar Zaman Shinwari through which he has prayed for the cancellation of the enrolment certificate of High Court of the respondent on the same grounds. Thus the complainant has prayed that, as the respondent has committed a professional misconduct under the provisions of Legal Practitioners and Bar Councils Act, 1973 and the rules framed thereunder, and thus is liable to be removed from practice. That the Disciplinary Committee of the N.‑W.F.P. Bar Council initiated proceedings against the respondent and the respondent submitted his written statement on 26‑8‑1993 in which he denied the allegations as contained in the complaint. The filing of the complaint was termed to be baseless, vexatious and motivated by political rivalry. It was also averred that some civil suits are also under trial against the complainant in the Civil Courts.

4. The Disciplinary Committee of the N.‑W.F.P. Bar Council after considering the evidence on record referred the matter to this Tribunal vide order, dated 27‑7‑1994 for final adjudication and this Tribunal after taking into consideration the material available on record found the respondent guilty of professional misconduct and ordered his immediate removal from the profession vide order, dated 12‑10‑1995.

5. The respondent filed an appeal before the Disciplinary Committee of Pakistan Bar Council which came for hearing before the august Committee under the Chairmanship of His Lordship Mr. Justice Munawar Ahmad Mirza (late) who as per detailed reasons contained in the order, dated 9‑10‑1999 set aside the impugned order and remanded the case for disposal afresh, keeping in view the observations recorded in the judgment which is reproduced below:‑‑ "Mian Saadat Shah, District Education Officer, Kohat, on information received through complainant Qamar Zaman has placed on record details with regard to adjustment of dues standing against or payable to appellant, Syed Nadir Shah Gillani. According to him a sum of Rs.4,761.08 is payable to appellant after entire adjustment of liabilities including period of absence. On the basis thereof D.E.O., Mian Saadat Shah, who is competent authority, has placed on record copy of letter regarding acceptance of resignation shown to have been submitted by appellant, with effect from 16th August, 1992, keeping in view the undertaking furnished by him before the Committee on 23‑1‑1999. Eventually on account of said development, factual position has materially changed and grievance agitated by complainant Qamar Zaman requires to be re‑examined by the Disciplinary Tribunal of N.‑W.F.P., Bar Council above situation after providing opportunity of hearing to both sides." After the receipt of the file notices were issued to the parties and on their appearance before this Tribunal detailed statements of Qamar Zaman Shinwari and Nadir Shah Gillani were recorded on oath. From the statements so recorded it is crystal clear that the respondent was employed as Theology teacher and he was in active service and in fact received salary for the period from June, 1992 to August, 1992. Regarding this, entries have been made in the Acquaintance Roll which were duly signed by the respondent vide copy Exh. T.W.1/1. It is also on the record that the respondent completed L.L.B. Course starting from the year 1991. It was on the direction of the Disciplinary Committee of Pakistan Bar Council that the resignation of the respondent was accepted with retrospective effect from 16‑8‑1992. This resignation was accepted by Mian Saadat Shah, District Education Officer on 9‑10‑1999, the certified copy of the office order was produced as Exh. T. W. 116.

6. In view of the acceptance of resignation of the respondent under the direction of the Disciplinary Committee of Pakistan Bar Council the factual position has materially changed and grievance of the complainant has almost been redressed.

7. The grievance of Qamar Zaman Shinwari complainant expressing his serious apprehension that respondent might un necessarily drag him in litigation for damages or malacious prosecution has also been redressed and the respondent has given an undertaking and statement to that effect has been recorded by the Disciplinary Committee of Pakistan Bar Council, that the respondent will not unnecessarily move for damages or other prosecution against the complainant except for his outstanding arrears of pay (if any). In view of the above‑changed position of the case, we exonerate the respondent and file the present disciplinary proceedings against him, with no orders as to costs. H.B.T./363/P Order accordingly.