1. ' BHAJANDAS TEJWANI (MEMBER).---This reference has been made by the Disciplinary Committee of Sindh Bar Council, under the Provision of subsection (4) of section 41 of Legal Practitioners and 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 tried 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 1st 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 ex parte against said Muhammad Yakoob. On 31-5-1995, respondent Messrs Jawed Khan and Arshad Jamal Advocates filed their Vakalatnama in the above suit on behalf of defendant Muhammad Yakoob along with an application for recalling of ex parte Order, which was supported with affidavit of Muhammad Yakoob. During these proceedings, respondents Messrs Mufti Bashir Ahmed and Arshad Jamal Siddiqui, Advocates also filed their Vakalatnama along with Affidavit-in-Rejoinder of Mr. Muhammad Yakoob, who was identified by Mr. Mufti Bashir Ahmed Advocate. This Affidavit-inRejoinder was also accompanied with phOtocopy of sale agreement, receipt allegedly signed by the father of the complainant Mirza Ayub 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 IX, rule 7, C.P.C. 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 along with application under section 151, C.P.C. Read with section 195, Cr.P.C., while disposing of the said application of the complainant, the learned trial 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 above order by the learned trial Court Mr. Mufti Bashir Ahmed moved application for grant of time for filing of 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 Vakalatnama by next date of hearing and on the next date an application under section 151, C.P.C. For further extension and application under Order 27, rule 26, C.P.C. Was filed and the dismissal of Application under Order 9, rule 7, C.P.C. Is mentioned in the complaint, thereafter filing of fresh application for setting aside of ex parte 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 Yaqoob. They pleaded that they handed over their Vakalatnama and affidavit to relative of Muhammad Yakoob, who was reported to be seriously ill and unable to move, the Vakalatnama and affidavit were received back through 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 bona fide intention and based on mistake of fact, done in good faith and same were neither intentional nor wilful and prayed for dismissal of complaint.
6. ' The complainant Miss Rehana Parveen filed her affidavit-inevidence, along with all relevant documents, stating same facts as 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 Court of learned 1st Senior Civil Judge (Central) Karachi, who produced two Vakalatnamas 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 cannot 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 mala fide 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 mala fide or bad intention but in good faith they trusted the relative of the deceased Muhammad Yakoob and from the evidence of complainant no where it is alleged that the above acts were committed knowingly, wilfully and malafidely, in order to achieve some ulterior purposes and personal 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 subsection (1) of section 41 of Legal Practitioners Bar Councils Act (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 received 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 Councils 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 lackirig in the instance case, particularly in view of the evidence of the complainant, who has stated in clear terms and denied the suggestion that respondents have acted with mala fide intention or with ulterior motives in filing affidavit and Vakalatnama having signatures of deceased Muhammad Yakoob and further the respondents frankly conceded to have acted in good faith and with bona fide 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.