MUHAMMAD ALAM KHAN (MEMBER).---On 14-9-1998 Asif Khan son of Aurang Zaib Khan resident of Rak-Kia Tehsil and District Swabi submitted a complaint to the District and Sessions Judge, Swabi for appropriate action against Masoud Anwar, Advocate/Oath Commissioner, Swabi alleging therein that he approached the respondent in connection with the attestation of an affidavit for securing a telephone connection for his house. It was alleged that the respondent has charged Rupees eighty for attestation of an affidavit. It was further alleged that the respondent is over-- charging for attestation of affidavits and thus, is taking undue advantage of, his status as an Oath Commissioner.
2. The learned District and Sessions Judge, Swabi issued a show-cause notice to the respondent vide his Letter No. 1042 dated 14-9-1998 calling for his explanation within two days from the issuance of the notice. On the failure of the respondent to submit his explanation a reminder was issued vide Letter No. 1049 dated 8-10-1998. In reply to the same, the respondent admitted the allegations in the complaint in an evasive manner as under:-- "The points/instructions noted for future guidance. I am sorry for the present situation, which was due to my ignorance. I also beg apology and assure that I shall be very careful in future".
3. In response to the said notice another explanation was submitted to the learned District and Sessions Judge Swabi by the respondent in which it' was very, boldly admitted that fee for attestation of documents by Oath Commissioner is a mutual settlement by two persons and thus it is a practice prevalent in Swabi Court's premises; however, the respondent has returned the over- charged amount to the complainant. The learned District and .Sessions Judge Swabi was not satisfied with the explanation and referred the matter to the Peshawar High Court Peshawar, which came for consideration before his Lordship Mr. Justice Qazi Muhammad Farooq and finally the matter was sent to N.-W.F.P. Bar Council Peshawar for initiating disciplinary proceedings against the respondent under the Legal Practitioners and Bar Councils Act, 1973. '
4. The Disciplinary Committee of the N.-W.F.P. Bar Council . Peshawar initiated proceedings against the respondent and the respondent submitted his written-statement on 8-6-1999 and admitted the over-charging of fee and showed his repentance for the same. On this the matter was referred to the N.-W.F.P. Bar Council Tribunal for final adjudication.
Before us, the respondent reiterated the same stand and made a clean breast admission of the allegations levelled against him and submitted that the overcharging of fee by the Oath Commissioners and Notaries Public was j prevalent in Swabi Court's premises.
5. The respondent was appointed as an Oath Commissioner by the august Peshawar High Court Peshawar vide Notification No.8 dated 28th January, 1996 for a period of one year and four months under the provisions of section 139(b) of the Code of Civil Procedure (Act No.1/4 of 1908) read with para. V of Chapter 12-B of High Court Rules and Orders volume IV which tenure expired on 28-5- 1997 and the respondent continued to work and attest affidavits as an Oath Commissioner. The matter does riot end there, because during the process of the case in the Peshawar High Court Peshawar, it transpired, that the respondent tampered with the notification and omitted the words one year and four months and continued this illegal practice .Of attestation of affidavits on charging fee of his choice.
6. The fee for the attestation of the affidavits by the Oath Commissioner and Notaries Public is not a matter of mutual settlement, the same is fixed by the Appointing Authorities and is Rs.Five for attestation of affidavit and documents as per instructions of Peshawar High Court Peshawar Letter No.8360-8374 dated 25-11-1991.
7. Oath Commissioners are appointed under the provisions of section 139(b) of Civil Procedure Code and are authorised only to attest affidavits on the pleadings submitted .In the subordinate Courts. For attestation of documents and noting the same, Notaries Public are appointed by the Provincial Government under the Notary Public Ordinance (Ordinance No.XIX of 1961) and in each case Advocates are appointed as such and they are expected to charge the usual fee prescribed for the same because no one can be allowed to take undue advantage of his position as such any over charging of fee by an Oath Commissioner or Notary Public will make them liable for disciplinary action under the Legal Practitioners and Bar Councils Act, 1973 and rules framed thereunder. An Advocate enjoys a very high position in the society and is expected to conduct himself in a way so as to maintain dignity, honour and respect not only of the legal profession but also of administration of justice and not to conduct himself in a way to bye-pass the professional canons of conduct.
8. Under the provisions of rules 134 and 172 of the Legal Practitioners and Bar Council Rules, 1976, it is the duty of every Advocate to uphold at all times the dignity and high standing of the profession as well as his own dignity as a member of the legal professions both within and outside the Court and not to indulge in deception and betrayal of `the public at large and the trust which is reposed in him and any violation or deviation from these rules makes him liable for professional misconduct under Rule 175-A of the Rules ibid.
9. It is also the duty of the learned District and Sessions Judges and the Provincial Government that while recommending Advocates for appointment as Oath Commissioners or Notaries Public, the integrity, honesty and standing in the Legal profession of an Advocate should be taken into consideration as criteria for such recommendations.
10. In view of the facts and circumstances of the case narrated above, we find the respondent guilty of professional misconduct and order his suspension from practice for a period of two years commencing from 28-8-1999, with costs of rupees twenty thousand payable to the N.-W.F.P. Bar Council Peshawar under section 41 read with section 44 of the Legal Practitioners and Bar Council Act, 1973.