1. Bhajandas Tejwani, Member.--This reference has been made by the Disciplinary Committee of Sindh Bar Council, under the Provision 'of sub-section (4) of Section 41 of Legal Practitioners & Bar Councils Act XXXV of 1973, who by Order dated 1.9.2001, has held that the allegations against the Respondents have been proved and they are liable to be tired by this Tribunal.
2. The facts of the Complaint lodged by the Complainant Miss, Rehana Parveen Advocate with Sindh Bar Council are that she filed Suit No, 551 of 1994 on 15.9.2004 in the Court of learned Ist. Senior Civil Judge Karachi Central, against one Muhammad Yakoob and KMC for cancellation of lease deed, executed in favour of said Muhammad Yakoob in plot of 26 square yards of front portion of her commercial plot, situated at Nital Colony Nazimabad Karachi. This Suit was ordered to be proceeded exparte against said Muhammad Yakoob. On 31.5.1995, Respondents M/s Jawed Khan and Arshad Jamal Advocates filed their Vakalatnama in the above Suit on behalf of Defendant Muhammad Yakoob alongwith an Application for re-calling of Ex-parte Order, which was supported with Affidavit of Muhammad Yakoob. During these proceedings, Respondents M/s Mufti Bashir Ahmed and Arshad Jamal Siddiqui Advocates also filed their Vakalatnama alongwith Affidavit-in-Rejoinder of Mr. Muhammad Yakoob, who was identified by Mr. Mufti Bashir Ahmed Advocate. This Affidavit-in-Rejoinder was also accompanied with photocopy of Sale Agreement, Receipt allegedly signed by the father of the Complainant Mirza Ayuh Baig and notice dated 16.9.1995. The signature of Mirza Ayub Baig, the father of Complainant, over Sale Agreement and receipt were alleged to be forged. The Vakalatnama filed by Respondent Mr. Mufti Bashir Ahmed was alleged to be photocopy with cutting of signature of Muhammad Yakoob, which was pasted from other document.
3. It was also stated in the Complaint that on 4.12.1995, the Respondent Mr. Mufti Bashir Ahmed moved Application Under Section 5 of Limitation Act for Condonation of delay in filing Application Under Order 9 Rule 7 CPC. During this period, the Complainant came to know about the fact of death of Defendant Muhammad Yakoob on 12.5.1995 and obtained Death Certificate which was produced alongwith Application under Section 151 CPC Read With Section 195 Cr.P.C. while disposing of the said Application of the Complainant, the learned rial Court observed as under:-- "I have seen the entire record which shows that dead person was identified by one Muhammad Jawed Khan Advocate, who also filed his power on 31.5.1995 on behalf of the Defendant No, 1, but actually as per Death Certificate the said Muhammad Yakoob was already died on 12.5.1995, thereafter it is gross misconduct on behalf of the Counsel, who has identified the dead person and is also against the ethics of the advocacy. The present application of the plaintiff is allowed and Mr. Jawed Ahmed Khan Advocate is liable to be dealt with in accordance with law as discussed above."
4. After passing of above Order by learned trial Court Mr. Mufti Bashir Ahmed moved Application for grant of time for filing life list of legal heirs to join them as party to the proceedings. asserting in the Application that they have come to know about the death of Respondent Muhammad Yakoob on receiving the copy of Application on 12.12.1995 and thereafter Undertaking was filed by Respondent Mr. Mufti Bashir to file his Vakaltnama by next date of hearing and on the next date an Application Under Section 151 CPC for further extention and Application Under Order 27 Rule 26 CPC was filed and the dismissal of application under Order 9. Rule 7 CPC is mentioned in the Complaint, thereafter filing of fresh Application for setting-side of Exparte Order is stated to have been filed by another Advocate Mr. Badar Munir which was also dismissed against which the Appeals preferred by legal heirs of Muhammad Yakoob were also dismissed.
5. On receipt of above Complaint, the Disciplinary Committee of Sindh Bar Council ordered notice to the parties who appeared before the Committee. The Respondents on service filed their reply, in which they admitted the filing of Vakalatnama and Application with Affidavit of deceased Muhammad Yakoob. They pleaded that they handed over their Vakalatnama and Affidavit to relative of Muhammad Yakoob, who was reproted to be seriously ill and unable to move, the Vakalatnama and Affidavit were received back though the relatives of Muhammad Yakoob with his signatures. Mr. Mufti Muhammad Bashir pleaded that due to shortage of Vakalatnama he filed photocopy of same, which was accepted by the trial Court without any objection from the Complainant and the signature of deceased Muhammad Yakoob was not pasted. All the Respondents asserted that all their acts were with bonafide intention and based on mistake of fact, done in good faith and same were neither intentional nor willful and prayed for dismissal of Complaint.
6. The Complainant Miss. Rehana Parveen filed her Affidavit-in-Evidence, alongwith all relevant documents, stating same facts alleged by her in the Complaint. She was cross-examined by Respondent Mr. Arshad Jamal Siddiqui for himself as well as on behalf of other Respondents. The Complainant also examined Mr. Muhammad Adnan Khan, the clerk of Govt of learned Ist. Senior Civil Judge (Central) Karachi, who produced two Valalatnama filed by the Respondents in the trial Court and in reply to cross, the Complainant has stated that it is correct to suggest that the case which is going on in the Court is not a personal subject matter between the Complainant and Respondents directly and that she can not say whether Respondents have any personal interest in the subject matter of the Suit which was decreed in her favour. The Complainant has further stated and admitted in clear terms as under:-- "It is incorrect to suggest that the Respondents had malafide intention and ulterior motive to file Affidavits and Vakalatnamas with signatures of Muhammad Yakoob."
7. This factual position that the Respondents had filed Vakalatnama and Affidavit of dead person in the Court has not been controverted and same is deemed to have been admitted, as in clear from the documentary evidence and reply of the Respondents, who have specifically pleaded that all this was not with any malafide or bad intention but in good faith they trusted the relatives of the deceased Muhammad Yaqoob and from the evidence of Complainant no where it is alleged that the above acts were committed knowingly, willfully and malafidely, in order to achieve some ulterior purposes and personally gain something, which is clear from the record, that even the Suit of Complainant was decreed by the trial Court in her favour.
8. The word misconduct used in sub-section (1) of Section 41 of Legal Practitioner Bar Council's Act of XXXV of 1973. has not been defined that to what extent, the act or omission Complained will constitute a misconduct, the same is not capable of precise definition and its reflection receive its connotation from the circumstances under which such act is committed. It literary means and implies wrong or improper conduct, failure to act honestly, some degree of mens rea on the part of person concerned. However, Chapter XII of Legal Practitioners and Bar Council Act 1973 deals with the canons of professional conduct for an Advocate and Part B of the said chapter lay down the rules with regard to the conduct of Advocate with his clients and any violation of these rules can also be termed as misconduct. In our opinion, these ingredients of establishing misconduct are lacking in the instant case, particularly in view of the evidence of the Complainant, who has stated in clear terms and denied the suggestion that Respondents has acted with malafide intention or with ulterior motives in filing Affidavits and Vakalatnama having signatures of deceased Muhammad Yakoob and further the Respondents frankly conceded to have acted in good faith and with bonafide intention.
9. In view of the above discussion, we direct that the Complaint of Miss. Rehana Parveen be filed, as no misconduct has been established against the Respondents. However it is observed that the Respondents though may have acted in good faith but they have been negligent by departing from the normal and usual practice and did not care to have even seen and recognize their client and there such act has resulted in the above Complaint and proceedings initiated against them, therefore they are being warned to be careful in future and see that no such acts are repeated.