The facts of this case are as follows :--
(a) Mst. Hassan Ara Begum wife of K. B. Nizamuddin owned 78 kanals, 7 marlas of land in village Kot Lakhpat. On 25-7-63 she through M. Afzal, Commission Agent, entered into an agreement with Fakharuddin Ahmad and Allah Yar Khan of House Building Consortium, 12-A, Shah Alam Market, Lahore, to sell the said land to them. Fakharuddin Ahmad and Allah Yar Khan paid her Rs. 10,000.00 by way of earnest money and agreed to pay the balance, namely, Rs. 2,18,596 odd at the time of registration of the sale deed. The parties agreed to have the sale completed before 3-1-64. The sale deed could not be registered by 3-1-64 and the date for registra tion was extended to 3-4-64 and subsequently to 15-7-64. According to the agreement dated 25-7-63 the intending purchasers were entitled to survey the land, to set up a board or to make any publicity with regard to the contemplated House Building Scheme. Before 15-7-64 the intending purchasers entered into possession of the land and set up a certain construction. Mst. Hassan Ara Begum protested and the intending purchasers in letter dated 12-5-64 informed her that the structure built at the sit was in her name and was her property.
(b) On 17-8-64 Mst. Hassan Ara Begum filed a complaint under sections 420, 447, 109 and 406, 409 and 109, P. P. C. against (/) Fakharudding Ahmad; (//) Allah Yar Khan of Messrs House Building Consortium, and (ill) M. Afzal of Messrs Moavin, Bank Square, The Mall, Lahore.
She alleged that accused Nos. 1 and 2 took wrongful possession of the land in question by deception, with the intent to cause wrongful gain to themselves and wrongful loss to her. She added that the usurpation of dominion over the land in question by accused Nos. 1 and 2 was done with the intention of insulting, annoying and intimidating her. She maintained that accused Nos, 1 and 2 had the hardihood to raise a pacca house on the land in question without any authority and without her consent.
Accused No. 3 was stated to be abetting accused Nos. 1 and 2 in the matter.
(c) The learned Magistrate recorded the statement of Mst. Hassan Ara Begum and the statement of Sher Muhammad and issued summons to the accused persons to answer an accusation under sections 420/406/109 and 447, P. P. C.
(d) The accused persons appeared in Court and engaged Mian Mohiuddin Ahmad, Advocate as counsel to defend them in the case.
(e) On 12-11-64 Mst. Hassan Ara Begum filed an application in trial Court requesting that Mian Mohiuddin Ahmad, Advocate be asked to withdraw from the case. She alleged that Mian Mohiuddin Ahmad, Advocate was likely to be called as a witness either by the complainant or by the Court or by the accused per sons in order to prove a certain notice given by him on behalf of the accused. It was further alleged that Mian Mohiuddin Ahmad, Advocate had stated at the bar that he was personally vitally concerned with the case as he was a relation and a personal friend of the accused. She also pointed out that Mian Mohiuddin Ahmad had attested the contents of the surety bond put in by the accused.
(/) The learned Magistrate issued a notice to Mian Mohiuddin, Advocate who in his reply admitted that he did serve a notice on the complainant on behalf of the accused. He, however, gave an undertaking on behalf of the accused that the accused would not produce him as a witness. He pointed out that in civil cases Advocates served notices on behalf of the parties but were not precluded from conducting the cases later on. He also urged that in any case, he could conduct the case of M. Afzal. He denied that he had any relationship with any of the accused persons. He also denied that he ever made a statement that he was a relative or a personal friend of the accused.
(g) The learned Magistrate heard arguments and relying on the case reported as PLD 1950 Lah. I by order dated 3-12-64 held that Mian Mohiuddin Ahmad, Advocate could not appear as a counsel in that case.
(h) Aggrieved by the said order dated 3-12-64, Fakhruddin Ahmad and other accused preferred a revision petition under section 435, Cr. P. C.
The proceedings are forwarded to the High Court on the following grounds : The learned counsel for Mst. Hassan Ara Begum contended that the impugned order had been made under the Legal Practi tioners Act and not under the Code of Criminal Procedure, 1898 with the result that a revision petition under section 435, Cr. P. C. was not maintainable and that action could be taken in pursuance of the Legal Practitioners Act.
The order has specifically been made in the course of the trial according to the Code of Criminal Procedure. As stated above, before the Advocate was actually summoned as a witness it was not proper to disallow him from appearing as a counsel. A revision petition, therefore, is competent. It is remarkable that the petition is not made by M. Mohiuddin and therefore Legal Practitioner Act is not attracted.
2. It is conceded that Mian Mohiuddin Ahmad, Advocate served the complainant with a notice on behalf of the accused. The accused may like to produce him as a witness in order to prove the said notice. Even according to the averments in the petition dated 12-11-64 Mian Mohiuddin Abmad was only a "likely" witness; till the date of the order he was not summoned by the complainant, or the accused, or the Court. Until that stage, Mian Mohiuddin Ahmad could not be debarred from appearing as a counsel merely on the ground that he was likely to be summoned as a witness.
3. It is a foundamental right of the accused persons to consult and engage any counsel of their own choice. A similar view was taken in AIR 1939 Bom. 150 and (1939) 40 Cr. L J 92. The mere citing of an Advocate as a witness would not operate as a disqualification for his appearance as counsel.
4. Of course, the moment, Mian Mohiuddin Ahmad, Advocate is summoned as a .witness, it will be proper for him to decide whether it will be embarrassing both for himself and for the Court if he should continue as counsel; normally if his evidence directly connects him personally with the facts of the case it should be embarrassing for him to continue and he should better retire as counsel. In that connection, a similar view was taken in the case reported as PLD 1950 Lah.
1. The learned Magistrate prohibited Mian Mohiuddin Abmad from appearing in this case before Mian Mohiuddin Ahmad was summoned as a witness and before the learned Magistrate determined that he was (in the words of the case reported as PLD 1950 Lah. I), an important witness in the cases or had a personal interest therein, the impugned order, therefore, was improper.
In pursuance of the provisions of section 435 read with sec tion 438, Cr.P.C. the proceedings are submitted to the High Court of West Pakistan, Lahore, with a recommendation that the order dated 3-12-64 be set aside and the learned Magistrate be directed to permit Mian Mohiuddin Ahmad, Advocate to appear in the Court until he is actually summoned as a witness, and the Court is of the view that Mian Mohiuddin Ahmad is an important witness or has a personal interest therein.
Order of the High Court This is a reference under section 438, Cr. P. C. made by the learned Additional Sessions Judge, Lahore, as far back as the 26th of February 1965, with the recommendation that the order of the learned Magistrate dated the 3rd of December 1964, to the effect that Mr. Mohyuddin Ahmad, Advocate, could not appear as counsel for the petitioners, who were accused in a complaint case under sections 420/447/109 and 406/409/109, P. P. C. filed by respondent No. 2 against them, be set aside.
2. The background of the reference is that on the 12th of November 1964, Mst. Hassan Ara complainant moved an applica tion before the learned Magistrate that Mr. Mohyuddin Ahmad, Advocate who had been engaged by the accused as their counsel may be directed to withdraw from the case for the reason that he was likely to be summoned as a witness by either party. It was also alleged that the Advocate was personally concerned with the case being a relation and friend of the accused, having also attested their surety bonds. Having heard the learned counsel for parties, the learned Magistrate placing reliance on PLD 1950 Lah. 1 held that Mr. Mohyuddin Ahmad, Advocate could not appear as a counsel in that case.
3. In the order of reference, the learned Additional Sessions Judge placed reliance on AIR 1939 Bom. 150 and (1939) 40 Cr. L J 92 distinguished PLD 1950 Lah. 1 relied upon by the learned Magistrate.
4. Having considered the position, I would readily agree with the learned Additional Sessions Judge that the mere likelihood of a counsel being summoned as a witness by either party is not good enough to justify his withdrawal from the case, or any such direction on the part of the Court. The authority relied upon by the learned Magistrate (PLD 1950 Lah. 1) proceeds on entirely different considerations, the circumstances of that case being altogether distinguishable. Accordingly I allow this reference and set aside the impugned order. It appears to me however, that since none of the parties has cared to pursue this petty matter it might have already become infructuous. .