' SARDAR MUHAMMAD LATIF KHAN KHOSA, MEMBER.---This complaint filed Mr. Abdul Majeed Khokhar resident of Jhelum against Mr. Fazal Elahi Siddiqui, Advocate Supreme Court and Mr. Karam Elahi Bhatti, Advocate-on-Record was referred under section 41(4) of the Legal Practitioners and Bar Councils Act, 1973, to this Tribunal, by the Disciplinary Committee of the Pakistan Bar Council.
2. The Complainant in his Complaint alleged that Civil Appeal No,52 of 1989 titled Assistant Works Manager v. Punjab Labour Court No,VI, Rawalpindi and others, was instituted before the Supreme Courtin which he was also a respondent; that he engaged Mr. Fazal Elahi Siddiqui, Advocate, Supreme Court and on his recommendation engaged Mr. Karam Elahi Bhatti as Advocate-on- Record; and that he paid all legal charges to them. The case came-up before the Supreme Court on 3-5-1989 when Mr. Fazal Elahi Siddiqui, Advocate did not appear while Mr. Karam Elahi Bhatti, Advocate-on-Record appeared and he unauthorisedly conceded to the acceptance of the appeal which was decided against him. He further averred that neither the date of hearing nor the decision of the appeal were conveyed to him. He further asserted that the Advocate-on-Record who had initially agreed, refused to appear in the review petition which was dismissed on account of his non-appearance and as barred by time on 22-10-1989. He alleged that in consequence he suffered irreparably as he will have to refund a huge amount of Rs,70,602. He, thus, prayed for disciplinary action and cancellation of the licences of both the respondents.
3. Mr. Fazal Elahi Siddiqui, Advocate in his reply, dated 31-3-1990, while admitting that he was engaged by the complainant, stated that he was not informed of the date of hearing of the appeal in question before the Supreme Court and that had he been so informed, he would have certainly appeared with full preparation. He asserted that even in the Review Petition, the complainant had not levelled any allegations against him.
4. Mr. Karam Elahi Bhatti, Advocate-on-Record, on the contrary, in his reply, dated' 22-4-1990 stated that he informed Mr. Fazal Elahi Siddiqui, Advocate of the date of hearing of the appeal who desired him to write to the client to contact him and clear his dues. He further stated that even on the evening preceding the date of hearing, he telephoned the respondent No,1, Mr. Fazal Elahi Siddiqui, who was not at home and whereupon he gave the message to his elder son reminding the fixation of the case on the ensuing day. However, when the appeal camp-up for hearing before the Supreme Court, the respondent No,1, Mr. Fazal Elahi Siddiqui, was absent and the Court refused to adjourn the case and he perforce had to argue to the best of his capacity, but the Court accepted the appeal. He further claimed that some days after the decision the respondent No,1 alongwith complainant approached him and desired to give a false affidavit which he refused whereupon the respondent No,1 lost his tamper and threatened him of dire consequences.
5. Mr. Fazal Elahi Siddiqui, in his rejoinder, dated 23-6-1990 to the reply filed by Mr. Karam Elahi Bhatti Advocate-on-Record took the position that he was not informed of the date of hearing of the appeal by Mr. Karam Elahi Bhatti, Advocate-on-Record. He also denied the other allegations contained in the reply.
6. The Complainant as well as the respondents did not produce any oral or documentary evidence and stated that they would file their affidavits in support of their respective versions. The affidavits reiterating their respective versions and denying the assertions of the others were filed. The complainant and Mr. Karam Elahi Bhatti, Advocate-on-Record respondent No,2, on 26-9-1997 stated that they do not want to cross-examine each other or Mr. Fazal Elahi Siddiqui, respondent No,1, but Mr. Fazal Elahi Siddiqui, respondent No,1 reserved his right to ask questions and cross- examine the complainant and respondent No,2. However, on 11-10-1997 he also made the statement that he does not want to cross-examine the complainant or the respondent No,2. Thus, the parties chose to argue the case on the basis of the evidence brought on record through their affidavits.
7. The complainant arguing his case reiterated the allegations that he had engaged both the respondents in the appeal filed against him. He had paid them the entire fee but when the appeal was heard, the respondent No,1 did not appear while the respondent No,2 gave a concessional statement culminating in the acceptance of appeal and the resultant loss of Rs,70,602 as it was held that the complainant was not entitled to receive the said amount allowed by the Labour Court. He emphatically claimed that he had not been informed by either of the respondents and both had consequently failed to perform their duties. His miseries were compounded when due to want of information from the respondents he even lost his right of review which was dismissed as barred by time.
8. Mr. Fazal Ellahi Siddiqui, respondent No,1 contended that the complainant has not levelled any allegation against him in the complaint and even in the review petition he has stated that Mr. Fazal Elahi Siddiqui, Advocate had agreed to re-argue the case. He argued that no tangible evidence has been brought on record by Mr. Karam Elahi Bhatti, Advocate-on-Record that he had informed him of the date of hearing. He claimed that he was present before the same Bench and had appeared in the case titled Pir Jamil Ahmad v. Ahmad Khan and others Criminal (Appeal No,176 of 1987) and had he been informed of this appeal by the Advocate-on-Record he would have appeared and argued the same on behalf of the complainant. A copy of the order passed in Pir Jamfl's case was placed on record. He insisted that the assertions made by Mr. Karam Elahi Bhatti in his reply and affidavits are incorrect and merit to be disbelieved. M. Siddiqui was asked to explain as to why he had not cross-examined either the complainant or Mr. Karam Elahi Bhatti, Advocate-on-Record, to dislodge their sworn statements, and in the circumstances when all the parties have not challenged each others affidavit, what value is to be attached to their respective versions. In reply, Mr. Siddiqui, Advocate vacillated to state that in the changed circumstances, despite his earlier statement declining to cross-examine them, opportunity be granted to him to cross-examine the complainant as well as Mr. Bhatti. The request was turned down by the Tribunal as it was opposed by the complainant and Mr. Bhatti and as despite grant of proper opportunity, Mr. Fazal Elahi Siddiqui consciously made a statement that he does not want to cross-examine either the complainant or Mr. Bhatti respondent No,2. Moreover, change in circumstances was stated to be the reason for changing the mind and making the request, but no change in the circumstances could be pointed out. Obviously, proceedings in any matter cannot be conducted to satisfy whims of a party. Sanctity of the proceedings is to be maintained and ordinary course is not to be deviated unless interest of justice so demands.
9. As regards merits of the controversy, it is pertinent to note that in answer to the query, whether Mr. Siddiqui considered it appropriate to return any part of the fee when he admittedly had not appeared in the case to represent the complainant, the reply given was that nothing was refunded.
Mr. Fazal Ellahi Siddiqui, Advocate stated that he had prepared the brief, drafted the petition/appeal and he finds no justification to refund the fee received. He was asked to show the papers of his brief which was available with him so that the preparation if any made could be seen, but the brief was not presented for perusal of the Tribunal saying that relevant papers are not available in the said brief. At this stage, Mr. Siddiqui, Advocate was reminded that the occasion to draft the petition for leave to appeal, or appeal, by him would not have arisen as he was engaged by the Complainant to defend the appeal filed against him and as such the reason given by him for not refunding the fee is premised on nonexistent foundation. He, however, insisted that he may have drafted a rejoinder but the same was not also produced before us. He then tried to argue wholly extraneous matters concerning his complaint against a Judge of the Lahore High Court but the said plea was not perused when it was pointed out that any such incident has no nexus with the present proceedings.
10. Mr. Karam Elahi Bhatti, Advocate-on-Record on the contrary, emphatically argued that Mr. Fazal Elahi Siddiqui, Advocate had engaged him as Advocate-on-Record in the case and he was paid only Rs,300, that he informed Mr. Fazal Elahi Siddiqui, Advocate of the date of hearing but the latter did not appear and he argued the case but the Full Bench of the Supreme Court decided the appeal against the complainant. He further alleged that Mr. Fazal Elahi Siddiqui, Advocate had subsequently desired a false affidavit from him which he refused and in consequence was threatened as well. He thus, claimed that he appeared at the time of hearing and he had no prowess over the decision of the Court. When questioned about the intimation to the complainant, he reiterated the stand taken in his reply to the effect that Mr. Fazal Elahi Siddiqui desired him to write to the client to contact Mr. Siddiqui and clear the dues and he wrote this intimation/letter and posted it in the District Courts Post Office the same day. He tried to raise the question of jurisdiction but when confronted with the earlier decision in Disciplinary Complaint No,1 of 1987 upheld in appeal to the effect that Pakistan Bar Council's jurisdiction fully extends to the Advocateson- Record not only with regard to their practice in other Courts but even rule 30 of Order IV of the Pakistan Supreme Court Rules envisages reference on Pakistan Bar Council and taking of appropriate action by it, he (Mr. Bhatti) did not press his objection.
11. Since the only evidence brought on record by the parties comprises affidavits and none of the parties cross-examined to test each other's veracity and the version contained in the affidavits is contradictory to each other, we are left with no choice but to gauge the probabilities and to decipher the truth on the touch-stone of judicial scrutiny. The facts which, however, stand established are that the complainant engaged both the respondents to defend his case in appeal before the Supreme Court; he was not informed of the date of hearing; the Advocate-on-Record appeared before the Full Bench while the respondent No,1 did not and that the appeal was accepted and the compensation of Rs,70,602 awarded to the complainant by the Labour Court was disallowed. It is also not disputed that the Review Petition directly filed by the complainant was dismissed being barred by time as also for non-appearance of the counsel who had appeared in appeal. Sadly enough, both the respondents are not only at variance on all the crucial aspects, but are accusing each other like ordinary litigants in their adversarial exuberance to knock out the other. Either one, or both are not telling the truth. In such a situation both the versions have to be kept in juxtaposition and the one which appeals to common sense and gets support from the circumstances is to be accepted or relied upon. It is also well-settled that a Court/Tribunal is not decreed the incompleteness of the tale told by either side to arrive at just conclusion by sifting the chaff from the grain, and discover the truth by appraising evidence with the application of judicial insight. Applying such test to the case in hand it would appear that Mr. Karam Elahi Bhatti, Advocate-on-Record as asserted by him did inform. Mr. Fazal Elahi Siddiqui, Advocate, about the date of hearing as they are mostly engaged through the Advocates and so was the position in this case. The respondent No,2 was nominally paid as compared to Mr. Fazal Elahi Siddiqui, Advocate and hence he obviously would like to ensure the presence of the former so that he is not called upon to bear the burden beyond his deserts. There appears to be no earthly reason for not informing Mr. Siddiqui of the date of hearing when the Advocate-on-Record himself did appear and made his submission before the Court according to his capacity and capability. The denial of respondent No,1 appears to have been built on the edifice of his appearance on the same day before the then Chief Justice and the stance of the complainant has clearly sought action against both the respondents and has so emphatically argued before us. Why respondent No,2 after appearing before the learned Chief Justice in Chambers in another case did not attend to the case of the complainant before the Full Bench was for him to explain and his bald denial of knowledge cannot absolve him of his responsibility. Rather it militates against him when he says that he appeared before the very Bench which is not true, for in that event why would Advocate-on-Record not inform him about the complainant's case and lessen his own burden and completely relieve himself of responsibility of arguing the case.
12. There are other factors also which unimpeachably establish the complainant's accusation as against the respondents. Not only that the respondent No,1 failed to appear in appeal when the case was taken-up for hearing on 3-5-1989, his conduct before us clearly betrayed extreme disregard and definance of the norms of professional conduct befitting of an Advocate. He was categorically asked whether he would like to cross-examine the complainant and or the respondent No,2 and he unreservedly declined and order was accordingly passed. During his arguments, however, he sought to retrace without showing any justification therefor. He even claimed that he was present in the very Court on 3-5-1989 and if he had been informed of the appeal, he would have argued the same. He showed us the order, dated 3-5-1989 of the then learned Chief Justice of Supreme Court passed in Chambers in Criminal Appeal No,176 of 1987 in which he had appeared. When he was told that it was not the same Bench as the appeal had been heard and decided by the Full Bench whereas the order shown to us was that of the learned Chief Justice passed in Chambers, he insisted that he was telling the truth. He again tried to justify the non-refund of the fee with a plea which was clearly incorrect as he refused to show us the so- called preparation of his brief and his reply that he had drafted the petition was patently incorrect, as he was representing the respondent in the appeal. The legality of decision is not open to exception but the trust by the complainant in the respondent/Advocate and his belief that had his counsel appeared and faithfully argued his case he would not have lost such a heavy amount is equally true. Such vacillations and conduct before us have also fortified our belief that version of respondent No,1, Mr. Fazal Elahi Siddiqui, Advocate that he was not informed of the date of hearing by the Advocate-on-Record, and his denial, do not reflect the truth. In view of above facts, we are constrained to observe that implicit reliance cannot be placed on the affidavit filed by Mr. Fazal Elahi Siddiqui. There is nothing else to establish his version.
13. So far as the case of Mr. Karam Elahi Bhatti, Advocate-on-Record/ respondent No,2 is concerned, he did appear on behalf of the complainant when the appeal was heard and decided on 3-5-1989. His contribution may conveniently be reproduced:- "The learned counsel for the respondent No,3 (the complainant herein) has also made no objection to the same."
Obviously, no lawyer can object to the judgment of the Court if decision on an issue is pronounced.
We note that the Full Bench of the Supreme Court had in its detailed judgment accepted the appeal in the ultimate paragraph of the very judgment and the attribution to the respondent No,2 herein as aforesaid following thereafter. However, the complainant in the circumstances, would be justified in mistrusting the conduct of the respondent No,2 especially when he was not informed either the date of hearing or following adverse decision thereafter and as a result whereof his right of review was lost. The established practice is that it is the Advocate Supreme Court who argues the case and the Advocate-on-Record plays a secondary role. The respondent No,2, Mr. Karam Elahi Bhatti has vehemently asserted before us that he did his best but could not convince the Court. Mr. Karam ELahi Bhatti, Advocate-on-Record though asserted that he intimated the date of hearing to the complainant by ordinary post but nothing has been stated as to whether or not information of the acceptance of the appeal was given to the complainant. Advocate-on-Record should keep proper record of the correspondence so as to absolve themselves of the responsibility.
The complainant legitimately believes and has so stated before us that he lost the case due to negligence not only of the Advocate but also of the Advocate-on-Record who had also been engaged by him. Thus, Mr. Karam Elahi Bhatti, Advocate-on-Record/respondent No,2 also cannot be completely absolved in the matter although he had appeared in appeal. There is no explanation for not intimating the result of appeal to the complainant with the result that he could not submit a review petition within time. This being the position, in this respect he failed to perform his duty enjoined upon him.
14. The profession of law confers highest trust upon the Advocates and Advocates-on-Record to whose hands a client entrusts his brief with the expectations of pleading his cause before the Court faithfully and to the best of their ability. It is unfortunate that the respondents have shown reckless disregard of such a trust reposed in them by the complainant. Though the abovenoted conduct of Mr. Siddiqui cannot be approved, but in the facts and circumstances of case (the appeal to defend which he was engaged) his presence and addressing the argument on behalf of the complainant would not have made any difference. One of the counsel for the complainant, (Mr. Karam Elahi Bhatti) did appear and represented the point of view of the complainant/respondent No,3 in the appeal, but considering the merits of the controversy, subject-matter of the appeal, no other decision except the one rendered by the Supreme Court could be taken. The impression of the complainant that Advocate-on-Record had conceded the appeal and so the same was decided against him is not correct. But this aspect of the matter does not absolve the counsel for not appearing before the Court and for not representing the client diligently and with the best of his ability. Due to non-performance of duty, the liability incurred remains and the misconduct of the counsel has to be suitably dealt with.
15. In the circumstances, we are inclined to suspend the licences of both Mr. Fazal Elahi Siddiqui, Advocate and Mr. Karam Elahi Bhatti, Advocate-onRecord (respondents herein) for a period of three months from the date of receipt of this order and impose a cost of Rs,4,000 upon Mr. Fazal Elahi Siddiqui, Advocate, which shall be paid to the complainant. During the suspension period, they shall be debarred from practicing in any Court or before any authority in Pakistan under section 43(6) of the Legal Practitioners and Bar Councils Act, 1973. Necessary effect shall be given to the punishment by making entries thereof in the Rolls of Advocates and Advocates-on-Record, against the name of the respondents and by informing all concerned.
' We had reserved the order on 11-10-1997. Let the parties be informed accordingly.