MUHAMMAD ALAM KHAN (MEMBER).---Mst. Raham Bibi complainant filed a complaint in the N.- W.F.P. Bar Council alleging therein that she had engaged the respondent as counsel in a civil suit No.412/1 instituted on 15-10-1996, which was decreed in her favour on 27-10-1996; that the respondent conducted the case on her behalf and secured the above decree in her favour.
2. It is important to note that Mst. Raham Bibi complainant is the widow of Amanullah Khan deceased Advocate of Kohat and the respondent Azmat Hayat Advocate is the real son of the complainant. Further averments in the complaint are that (sic) Judge Kohat in which the same judgment and decree, already granted in favour of the complainant/appellant was challenged and the decree was termed to be fictitious and forged, besides also, the complainant was stated to be an old, illiterate lady and allegedly, has been shocked by the death of her husband Amanullah Advocate Kohat. It was alleged in the complaint that the respondent being the counsel for the complainant could not challenge the vires of the decree passed in favour of the complainant and by doing so the respondent has violated the canons of professional conduct prescribed for Advocates and stern legal action in the matter was prayed for, to be taken against the respondent.
3. The Disciplinary Committee of the N.-W.F.P. Bar Council initiated proceedings against the respondent and the respondent submitted his written statement on 23-4-2002, wherein the allegations contained in the complaint were controverted. However, the relationship of mother and son as well as the jural relation of counsel and client in the earlier suit filed by the complainant was admitted. It was averred that the earlier suit was conducted by him under the instructions of his father Amanullah Khan Advocate Kohat who was a defendant in the suit. The complainant being the real mother of the respondent was not charged any professional fee and consequently the respondent was within his right to challenge the vires of the decree already obtained by him as counsel for the complainant/appellant. It was also submitted that the N.-W.F.P. Bar Council has got no jurisdiction to entertain the instant complaint and the same was liable to be dismissed.
4. During the proceedings the respondent/Advocate also submitted a separate application for dismissal of the complaint on the ground of non-maintainability.
5. The parties submitted written arguments and the learned Members of Disciplinary Committee N.-W.F.P. Bar Council Peshawar considering the written arguments and the data available on the record adjourned the complaint sine die vide impugned order dated 10-8-2002 and hence the present appeal by Mst. Raham Bibi complainant/ appellant.
6. We have heard arguments of the learned counsel for the parties as well as Deputy Advocate- General for the Government of N.-W.F.P. And have gone through the record of the case.
7. Learned counsel appearing for the complainant/appellant submitted that the real mother of the respondent had reposed trust in the respondent by engaging him as counsel to conduct her case in civil suit No.412/1 decided on 27-10-1996 in which the respondent secured a decree for her in the disputed house on the basis of a consent recorded by Amanullah Khan Khattak Advocate, Kohat i.e. The defendant in that case. His statement on oath was recorded by Asif Hamid Qureshi, Civil Judge 1st Class Kohat and on the strength of the same a decree of 1/2 share in the disputed house was granted by the learned Civil Judge in favour of the appellant. So it was argued that the jural relation of counsel and client existed between the parties and the respondent could not legally challenge the vires of the said judgment and decree because by doing so the respondent has not only betrayed the trust of his client but his conduct is also violative of the ethics of professional conduct prescribed for the Advocates under the Legal Practitioner and Bar Councils Act, 1973 and the rules framed thereunder.
8. The learned Deputy Advocate-General appearing for the Government adopted the same arguments.
9. The counsel for the respondent argued that the appeal filed by the appellant is incompetent in so far that the Disciplinary Committee of the N.-W.F.P. Bar Council can either summarily reject the complaint or refer the same for final adjudication to this Tribunal under the provisions of section 41 of the Act ibid and only the order of rejection of complaint summarily by the Disciplinary Committee is appealable under section 41(b) of the Act. As the complaint has not been dismissed and only adjourned 'sine die'. So no appeal is competent and the present appeal is liable to be dismissed on this ground alone.
10. It was also argued on behalf of the respondent that the earlier suit was based on a separate cause of action having different parties than the one filed by the respondent, and the same will not come within the definition of representing the conflicting interests. It was also argued that as no jural relations of counsel and client were in existence between the parties and furthermore, this Tribunal cannot comment on the subsequently instituted suit filed by the respondent as the same is sub judice before a competent Court of law. Reliance was placed on Dr. Nazeer Afridi v. Maqsood Baig, Advocate Abbo tabad in 1995 MLD Page 1982 and Hafiza Begum v. Abdul Sattar Advocate (2001 MLD Page 841) and Iftikhar Ahmad v. Abdul Raziq Advocate reported in (2002 Peshawar Law Reports page 782) so it was prayed that the appeal being without merits, is liable to be dismissed.
11. It was also argued that as the respondent had not been engaged by the appellant as counsel so no jural.
12. We have given our due consideration to the submissions of the learned counsel, but before embarking upon the merits of the case, we have to deal with the preliminary objection regarding the maintainability of the appeal, the Disciplinary Committee of the N.-W.F.P. Bar Council on examining the data available on the record will either reject the complaint or refer the matter to this Tribunal for final decision. In the case in hand, the matter has been adjourned sine die till the disposal of the civil suit filed by the respondent. Obviously this order passed by the Member of the Disciplinary Committee is without jurisdiction, otherwise, even if an order is passed by a lower forum having no jurisdiction, the appellate forum had the vested jurisdiction to set aside the orders passed by the lower forum and the appeal would lie to the Appellate Court, in the same manner as an appeal lies from a decision with jurisdiction. Right of appeal of a person cannot be defeated on the ground that the impugned order is without jurisdiction. Reliance in this respect is placed on M.
Aslam Bajwa v. Federation of Pakistan reported in PLD 1974 Lahore page 545 (g) and M. Ishfaq v.
The State reported in PLD 1973 SC 368 (b) so the appeal is fully competent and has been competently filed by Mst. Raham Bibi.
13. Regarding the maintainability of the complaint under the provision of section 41 of the Act ibid it is not only the professional misconduct but other conduct also which the N.-W.F.P. Bar Council Tribunal and Disciplinary Committee can look into. The misconduct need not be directly related to the matter but if the same has got remote nexus with the matter, the same will attract the provisions of legal Practitioner and Bar Councils Act and rules ibid. Reliance in this respect is placed in case of Barrister/Advocate reported in AIR 1934 Lahore page 251(g). The case-law cited by the counsel for the respondent is distinguishable insofar as in those cases a complaint had been lodged against an opposite counsel in which the facts of a civil suit were being discussed so it was held that this Tribunal cannot sit as a Court of appeal against the judgment delivered by a competent Court.
14. The respondent has challenged the vires of a decree secured by the appellant in which the respondent was a counsel and has admittedly violated the norms of professional ethics and the rules framed under the provisions of the Act ibid.
15. The factum of maternal relationship as well as the jural relations of counsel and client has been admitted by the respondent as also the fact that he remained the counsel for the complainant/appellant in the earlier instituted suit regarding the suit house which is also the subject-matter in the subsequently instituted suit, on the engagement of a counsel certain instructions and privileged communication pass on between the counsel and client and under the law counsel can neither disclose the same nor can take personal benefit out of it adverse to his client. Furthermore, under the law a counsel cannot represent conflicting interests.
16. An Advocate enjoys a very high position in the society and the Courts of law as well as the general public repose great trust in Advocates and they are expected to maintain the dignity of the legal profession and not to betray the sacred trust reposed in them. In the case in hand, the respondent has acted and is still acting in a very irresponsible and callous manner with his own real mother. If a person can betray and shatter the confidence of his own real mother, then how can it be expected of him to maintain the confidence and trust of other litigants, general public and Courts of law. Reliance in this respect is placed on Mst. Surriya Bibi v. Sohail Khan Advocate Peshawar reported in PLJ 1999 Tri Cases page 425 and Mst. Hassan Zari v. Said Farosh Ex-Advocate Dagger Bunir reported in 2000 CLC page 433, which on all four cover the facts of the instant case.
17. It is also ordained by Allah Almighty in the Holy 'Quran' that administer justice, because it is near to piety and nearness to piety means nearness to Allah Almighty so any act violative of the above command of Allah Almighty will be stinkingly abominable and will definitely amount to Professional misconduct which must be dealt with stern hands. So the appeal merits acceptance and on acceptance of the same the impugned order of the Disciplinary Committee is set aside.
18. Consequently, in view of the facts and circumstances, narrated above, we find the respondent guilty of Professional misconduct and order his- suspension from the profession for a period of five years, commencing from today with costs of the proceedings amounting to Rs. Thirty thousand with direction to the respondent to deposit the costs with the Secretary N.-W.F.P. Bar Council within thirty days otherwise the same will be recovered through the process of execution by District Judge Kohat under section 44(3)(b) of the Legal Practitioners and Bar Councils Act, 1973. Half of the costs, on recovery, would be paid to the appellant Mst. Raham Bibi and the rest to N.-W.F.P. Bar Council Peshawar. Copy of this judgment be sent to District Judge, Kohat, so that the trial Court dispose off the proceedings of civil suit Pending between the parties as expeditiously as possibly.