' SYED HAIDER IMAM RIZVI, MEMBER.--- The instant matter was heard and reserved on 2.4.2016 and was disposed off vide short order dated 23.4.2016. The following are the reasons for the said order:
2. The background of the case is that the Complainants moved an application dated 4.12.1993 to the Hon'ble Chief Justice of the High Court of Sindh alleging misconduct on part of the Respondent No.
1. This application was forwarded to the Sindh Bar Council on 27.12.1993 upon the directions of the Hon'ble Chief Justice. A second application dated 25.10.1994 in this regard was also moved by the Complainants during hearing of their Criminal Appeal No.243/1993 alleging misconduct on part of the Respondents Nos.1 and 2 which was also referred to the Bar Council by the learned Division Bench of the Sindh High Court vide order dated 25.10.1994. Both applications related to the same transaction of events.
3. Vide order dated 12.11.1995 -- having considered both applications/complaints referred to the Sindh Bar Council jointly -- the Disciplinary Committee was pleased to make a reference to this Tribunal for trial in terms of section 41 of the Legal Practitioners and Bar Councils Act, 1973 ['the Ace].
The order passed by the Disciplinary Committee was ex parte as neither Respondent appeared to defend himself.
4. Before the Tribunal, both Complainants examined themselves on 27.7.2002 and 24.8.2002 respectively and were cross-examined by the Respondent No.2, Hatif Khudai Ansari. The Respondent No.1, Naeem Qureshi, did not cross-examine the complainants despite being afforded the opportunity. Thereafter, on 3.9.2005, the Respondent No.2 examined himself and was cross- examined by the Complainant No.1, Ali Akbar. Certain questions were also put to him by the tribunal itself. The Respondent No.1 did not lead any evidence.
5. On the same date, namely 3.9.2005, the matter was finally heard and reserved. Unfortunately, no decision was announced and eventually on 20.4.2006 the matter was put up for rehearing. The matter was again reserved for orders on 24.6.2006 but once again no decision was announced and it was again listed for rehearing on 21.10.2006. Thereafter, the matter was again heard and reserved on 4.11.2006 but it still could not be decided. On 21.7.2007, the Complainant No.1 moved an application for reopening of his side and for calling three additional witnesses but his application for leading further evidence was declined by the Tribunal. On 18.8.2007, the matter was once again reserved for orders but - like on previous occasions -- no order was announced. On 17.11.2007 the matter was adjourned to a date in office and then did not come up for hearing until 2.4.2016. It appears that no sitting of the Tribunal took place during this entire period which is unfortunate to say the least.
6. As a result, during pendency of the case, it appears that the Complainant No.1 as well as the Respondent No.2 have passed away whereas the Complainant No.2 has not been appearing since 24.8.2002 and seems to have lost interest in pursuing the case. Thus, on the final date of hearing viz 2.4.2016, only the Respondent No.1 appeared and argued while proceedings against the Respondent No.2 were discharged. Given the absence of the Complainants, we gave our anxious consideration as to whether the matter (as against the Respondent No.1) should simply be dismissed for non-prosecution. However, we are mindful of the fact that the absence of the Complainants was caused, largely, by the long delay in the conclusion of the proceedings which was not due to any fault of the Complainants. Moreover, we are of the view that disciplinary proceedings in relation to the grave acts of misconduct on part of an advocate (especially in cases where the Disciplinary Committee has considered the allegations weighty enough to be referred to this Tribunal) assume a public character and are not governed by the ordinary rules of adversarial civil proceedings between private parties. As such, they should not be dismissed in non-prosecution purely as a matter of routine. We are fortified in this view by the Division Bench judgment of West Pakistan High Court in the matter of Muhammad Shaflq, Advocate (PLD 1960 W.P.
Lahore 720). In our opinion, in cases where evidence has already been recorded, it is open for the Tribunal to examine the record of the case itself and apply its mind to the merits of the case. We have, accordingly, done so.
7. At the outset, we must reject the contention of the Respondent No.1 that these proceedings are not maintainable as -- according to the Respondent No.1 -- the Disciplinary Committee forwarded the complaint to the Tribunal without a proper hearing or a meeting. In fact, the record shows that the Committee did issue notice to the Respondents and the Respondent No.1 even entered appearance at one stage. However, no reply was filed by the Respondents and they were not present when the. Disciplinary Committee passed an ex-parte order referring the complaint to the Tribunal. We do not understand, therefore, how the failure of the Respondent No.1 to properly defend himself before the Committee renders the proceedings before this Tribunal without jurisdiction.
8. Before assessing the evidentiary merits of the allegations against the Respondent, we must firstly consider the applicable burden and standard of proof. As far as the former is concerned, it is trite law that the burden of proving an act of misconduct justifying disciplinary sanctions against an individual must rest upon the person making such allegations. Even otherwise, the Qanun-e- Shahadat Order, 1984 is applicable to proceedings before the Tribunal and Article 117 thereof is more than clear on this point.
9. As far as the applicable standard of proof is concerned under section 41 of the Act, the Tribunal may award the punishments of reprimand, suspension, removal from practice or payment of compensation, fine or penalty if it finds an advocate guilty of professional or other misconduct.
Thus before awarding punishment, the Tribunal must firstly be satisfied that "professional or other misconduct" has been committed. Misconduct is defined in Black's Law Dictionary (10th Edition) as "
(1) a dereliction of duty; unlawful, dishonest or improper behaviour esp. By someone in a position of authority or trust" and "(2) An attorney's dishonesty or attempt to persuade a court or jury by using deceptive or reprehensible methods". In other words, there is necessarily an element of moral turpitude involved in misconduct and reaching such a finding about an advocate would naturally create a stigma around his reputation. It may well disqualify him from holding other offices and employment. At the same time, the sanctions that may be visited upon an advocate guilty of misconduct are of a drastic nature and include removal from the practice of law altogether which would deny him the right to practice his profession and earn his livelihood. Given the penal nature of the jurisdiction being exercised and in light of the case law discussed below, we are of the view that allegations of misconduct must be proved to a higher standard than merely the balance of probabilities required in civil cases. Rather the appropriate standard of proof to be applied in such proceedings is the criminal standard of proof i.e. Beyond a reasonable doubt.
10. It is well-settled that the standard of proof legally required for establishing a particular fact or allegation depends on the nature of proceedings and the consequences that follow from a decision therein. In election petitions, for example, the superior courts have consistently taken the view that in order to reach a finding of "corrupt and illegal practices" and to de-seat a returned candidate as a result thereof; the election tribunal should apply the criminal standard of proof and the returned candidate should be extended the benefit of all reasonable doubt. The leading judgment in this regard is the case of Muhammad Saeed v. Election Petitions Tribunal, West Pakistan (PLD 1957 SC 91) where Cornelius J. Observed that "[the penalty for commission of corrupt practices is of the most serious character. The loss of civic rights in the shape of disqualification for voting or for standing as a candidate for election to a representative status is in itself a grievous one. But the further penalty of the loss of representative status, achieved by gaining the suffrages of the electorate which follows avoidance of an election is one which, in a democratic State, must be placed among the most severe known to law. Consequently, the law necessarily expects a very high degree of care that these penalties should not be applied and that the expression at an election of the wishes of the electorate should not be set at naught, except where the necessary conditions are found, in detail, to have been established, after an enquiry conducted in accordance with strictly judicial process affording the greatest assurance against the possibility of error." As a result, the Hon'ble Supreme Court held that the petitioners bore the burden of proving the allegations against the respondents beyond reasonable doubt. In the present case, although the element of negation of electoral will may be absent, it is clear that the consequences that may be visited upon the advocate in case of a finding of misconduct are of equally dire nature and shall deprive him of his fundamental rights to practice a profession and earn a livelihood guaranteed under Articles 18 and 9 of the Constitution of the Islamic Republic of Pakistan.
11. The reasoning of the Hon'ble Supreme Court in the aforementioned judgment was subsequently followed in the cases of Mohd. Yousuf v. S.M. Ayub (PLD 1973 SC 160) and Saeed Hassan v. Pyar All (PLD 1976 SC 6) and Qutub Ahmed v. Faisal All Subzwari (2007 CLC 1682). In the former case, Sajjad Ahmed J. Elaborated further upon the principle by observing "Mt is well settled that the provisions of a penal statute, such as contained in the clause 2 (h) of the Legal Framework Order, 1970, entitling forfeiture and deprivation of valuable rights of progeny have to be very strictly construed and in the case of doubt the benefit must go to the person against whom they are sought to be invoked. The rule is founded on the tenderness of the law for the rights of individuals" [emphasis added]. In view of such principle, in the Mohammad Yousuf case, the Hon'ble Supreme Court was disinclined to place much importance upon an alleged admission of the counsel of the respondent before the tribunal. We see no reason to place the individual rights to practice a profession and earn a livelihood on a lower footing than the rights to franchise and property and thus are of the view that the same standard of proof should be applicable to both types of cases.
12. Indeed, the superior courts have, by now, laid down the consistent principle that wherever the law permits the imposition of penalties upon an individual, the standard of proof to be followed is that prescribed in criminal law i.e. Beyond reasonable doubt. Thus in the case of Wella Aktineesellschaft v. Shamim Akhtar (2015 SCM R 1274) it was held that power to strike off a registered trade mark from the register under section 37 of the Trade Marks Act, 1940 was penal provision and hence the facts justifying imposition of such penalty must be proved beyond reasonable doubt. Similarly, in the cases of Kamran Industries v. Collector Customs, Karachi (PLD 1996 Kar. 68) and CIT v. Kamran Steel Re-rolling Mills (1989 PTD 521), it was held by division benches of the Sindh High Court and the Lahore High Court respectively that penalty proceedings under the Customs Act, 1969 and the Income Tax Ordinance, 1979 required that the allegations against the assessee be proved by the department beyond all reasonable doubt and independently of the strength of the assessee's own statement or explanation.
13. Keeping these legal principles in mind, we now approach the evidence recorded in this case.
Had this been a case for determination of civil liability, we might perhaps have concluded that the Respondent No.1 's failure to cross-examine the Complainants coupled with his failure to lead any evidence in rebuttal was sufficient, on a balance of probabilities, to reach a finding adverse to him.
In the present proceedings, however, the burden of proving the allegations of misconduct rested upon the Complainants who were required to independently establish the same beyond reasonable doubt and irrespective of the defence (or lack thereof) put up by the Respondent No.1 .
14. In the first complaint/application preferred by the Complainants on 4.12.1993, the only allegation made by the Complainants was against the Respondent No.1 and solely to the extent that he had taken Rs.15,000/- from them to appeal against their conviction but had subsequently disappeared leaving them to their fate. Not a single word about the Respondent No.2's involvement was stated nor was there any mention of the Respondent No. l's role in the trial proceedings.
15. However, in the second complaint/application dated 25.10.1994, the Complainants stated that they had paid Rs.125,000/- to the Respondent No.1 as legal fees for the trial proceedings and he continued to appear on their behalf for over a year but eventually informed them he would be unable to devote further, time to them as he had himself been implicated in certain criminal proceedings. At this point, since the case was in its final stage, they engaged Mr. Waqar Shah as their advocate for a fee of Rs.6,500/-. They further stated that the Respondent No.1 later approached them again and offered to have them acquitted upon a further payment of Rs.100,000/- and that two of their associates agreed to this offer and were acquitted while they were unable to afford further payment and hence were convicted. The Complainants further stated that, after conviction, they were again approached by the Respondent No.1 who offered to represent them in appeal and they paid him firstly Rs.20,000/- and Wen another Rs.15,000/- to pursue the appeal. However, after about 6-7 months when they complained about the lack of progress, the Respondent No.1 asked for a further sum of Rs.35,000/- in order to have them acquitted. At this point, they flatly refused and -after further enquiry -- they discovered that their appeal had not been filed by the Respondent No.1 but by the Respondent No.2 who was not even known to them. As is apparent from the above, the contents of this second complaint/application are vastly different and contradictory to those of the first complaint/application. There seems to be a clear attempt to embellish and improve upon the contents of the earlier complaint by adding details. Moreover, while the Complainants had originally stated that they paid Rs.15,000/- to the Respondent No.1 for the appeal in the second complaint they enhanced this figure to Rs.35,000/-.
16 The eventual testimony of the Complainant No.1 is materially different from both the above complaints. In his testimony before this Tribunal, the Complainant No.1 claimed that the Respondent No.1 had demanded legal fees of Rs.155,000/- before the trial court of which Rs.125,000/- was paid to him. However, at the final stage of proceedings before the trial court the Respondent No.1 stopped appearing as a result of which they engaged Mr. Waqar Shah and paid him Rs.6,500/- as legal fees. After their conviction, the Respondent No.1 again approached them and offered to have them acquitted in appeal if they paid his balance fees of Rs.25,000/-. As they did not have the money, he refused to appear and, instead, informed them that he had asked the Respondent No.2 to file their appeal. However, the latter stopped appearing after 3 to 4 dates due to which the Complainants were forced to first engage Mr. Nooruddin Sarki to appear in the appeal and thereafter Mr. Salahuddin Gandapur.
17. A few important points are to be noted about this testimony. Firstly, it is materially inconsistent with the complaints of 4.12.1993 and 25.10.1994. In this testimony (as opposed to both earlier complaints/ applications), the Complainant No.1 clearly states that he paid nothing to the Respondent No.1 for the appeal. Moreover, he admits that they were informed by the Respondent No.1 that the Respondent No.2 would be filing the appeal on their behalf and, he further admits that the latter appeared in the appeal on three or four dates of hearing and then stopped appearing as due to non-payment of fees. The Complainant No.l's main grievance -- in this testimony -- is that "
[we had paid to The Respondent No.1 a sum of Rs.125,000/- but he did not appear in the Court on all the dates as a result of which we were convicted". Taking this testimony at face value, it does not seem that any case of misconduct is made out. As far as the filing of appeal is concerned, the Complainant No.1 has admitted that no fees was paid to the Respondent No.1 due to which he refused to take further proceedings and had instead duly informed the Complainants that the Respondent No.2 would file an appeal for them. Far from any misconduct, this seems to have benefited the Complainants inasmuch as they had an appeal filed for them without having to pay any further amount in fees. As far as non-appearance in the trial is concerned, the Complainants have themselves stated in their second complaint/application that the Respondent No.1 continued to appear until the final stages of the case when he excused himself due to preoccupation in the criminal proceedings filed against him personally. As a result, they engaged Mr. Waqar Shah for a seemingly nominal sum of Rs.6,500/-. If the Complainants had any real grievance against the Respondent No.1 for his non-appearance at the final stages of the trial, it stands to reason that they would have complained against him at that stage. The very fact that they tried to re-engage the Respondent No.1 for the appeal tends to suggest that they were satisfied with his overall performance at the trial. Clearly, therefore, the complaints seem to be an after-thought and a result of frustration at their continued incarceration.
18. It is also pertinent to note that the testimony of the Complaint No.2, Qurban Ali, is materially inconsistent with both the complaints/ applications and with the testimony of the Complainant No.l. He claims -- contrary to the Complainant No. l's assertion -- that the full amount of Rs.155,000/- was paid to the Respondent No.1 at the trial stage. He further claims that the Respondent No.1 demanded Rs.15,000/- for the appeal (as opposed to the Complainant No. 1 's claim of Rs.25,000). However, he admits (in clear contradiction of the complaints dated 4.12.1993 and 25.10.1994) that the Respondent No.1 was not paid any such sum and further admits that he was informed by the Respondent No.1 that the appeal was filed through the Respondent No.2.
Again, the Complainant No.2's primary grievance against the Respondent No.1 appears to be his failure to have him acquitted from the trial court which can hardly be termed as misconduct. As far as the allegation regarding the Respondent No.1's failure to appear in the final hearing of the trial is concerned; the reason for the non-appearance has been mentioned in the second complaint dated 25.10.1994 itself. Moreover once again, there is no explanation as to why the Complainants did not prefer any complaint at that stage and as to why they still sought to engage the Respondent No.1 in the appeal despite his alleged misconduct at the trial stage.
19. As is evident from the above, the Complainants' testimonies when compared against each other and against their earlier complaints/applications dated 4.12.1993 and 25.10.1994 clearly lead to the conclusion that they are not to be regarded as witnesses of the truth. As such, without any independent corroboration of the allegations in question, it would not be safe to base an adverse finding against the Respondent No.1 merely upon the say-so of the Complainants particularly when their statements and testimonies are rife with inconsistencies. No doubt, corroboration of independent witnesses is not always an essential prerequisite in such cases but, at the same time, we cannot ignore the fact that the Complainants were convicted criminals having substantial cause to harbour a grievance against the Respondent No.1 inasmuch as he had remained their lawyer in the trial below which ended in their conviction.
20. In view of the foregoing, we are of the considered opinion that the complaint and proceedings against the Respondent No.1 are liable to be dismissed.