MUHAMMAD ALAM (MEMBER).---This, judgment will dispose off an appeal tiled by Mst. Hafiza Begum appellant against the judgment of the Disciplinary Committee of the N.-W.F.P., Bar Council Peshawar dated 15-7-2000 vide which the learned members of the Disciplinary Committee dismissed the complaint filed by the appellant praying for disciplinary action of professional misconduct against the respondent which was filed by the appellant in the N.-W.F.P., Bar Council Peshawar on 24-8-1995, alleging therein that, the appellant had filed some civil suit in Civil Court Peshawar and during its pendency the respondent-Advocate was helically pursuing the same as if he, himself was a party in that litigation.
2. It is further alleged in the complaint that in the midnight between 17-8-1995 and 18-8-1995 the respondent alongwith M. Ashfaq, Advocate had engaged labourers and demolished the walls of a room which was the subject-matter of the litigation, it is further averred in the complaint that on this information, the appellant went to Police Station Hasht Nagri Peshawar, where the respondent Abdul Sattar misbehaved with the appellant, so the appellant prayed that the respondent alongwith M. Ashfaq, Advocate have committed professional misconduct and legal action under the provisions of Legal Practitioners and Bar Council Act, 1973 was prayed for.
3. The Disciplinary Committee of the N.-W.F.P., Bar, Council initiated proceedings against the respondent alongwith M. Ashfaq, Advocate and the respondents in the original complaint submitted detailed written statements refuting the allegations, it was averred that the present respondent namely Abdul Sattar was the Counsel for Subugtageen defendant in a civil suit, which had been filed by Akhtar A.I Shah husband of Mst. Hafiza Begum appellant in a Civil Court at Peshawar and the same was being defended by the respondent on behalf of his clients. That civil suit was decided against S. Akhtar A.I Shah up to the august Supreme Court of Pakistan. Besides also the respondent had remained the opposite counsel of the complainant and it was out of personal grudge and malice that the present complaint has been filed by Mst. Hafiza Begum.
4. The learned members of the Disciplinary Committee after assessment of evidence and taking into consideration the data available on the record, found that the respondent has not committed any professional misconduct warranting penal action against him under the provisions of Legal Practitioners and Bar Councils Act, 1973, and vide impugned order, dated 17-7-2000 dismissed the complaint with costs of Rs.Five hundred imposed on the complainant. Mst. Hafiza Begum has assailed the order, dated 15-7-2000 and has filed the present appeal.
5. In support of the appeal, the appellant submitted that the learned members of the Disciplinary Committee had only recorded the evidence of the appellant and the dismissal of the complaint summarily on the application of the respondent was not warranted by law and furthermore, the evidence so far recorded had constituted a case of professional misconduct against the respondent warranting the stern action as envisaged by section 41 of the Legal Practitioners and Bar Councils Act, 1973 and the rules made thereunder. It was also submitted that the professional misconduct need not be the direct consequence of the professional duties of an Advocate but, even if, it is remotely connected or has got any nexus with the professional duty the, same will also constitute a professional misconduct. Reliance in this respect was placed on Mst. Surriya Bibi v.
Sohail Khan, Advocate Peshawar reported in 1999 YLR 2315 and in the case of Muhammad Malik v.
Fazal Karim reported in 1999 MLD page 935. It was next contended that when the burden of proof is placed on a party and his statement remains unrebutted then the burden shifts to the respondent and in that case the plaintiff would be deemed to have sufficiently discharged the onus of proof.
6. The respondent on the other hand submitted that in so far the evidence recorded by the learned members of the Disciplinary Committee, no professional misconduct had been committed by the respondent and the learned members of the Disciplinary Committee have rightly dismissed the complaint. It was next contended that the provisions of Civil Procedure Code were applicable to the proceedings before the Disciplinary Committee and under the provisions of Order 7, rule 11 the learned Members of the Disciplinary Committee could take any action if the complaint prima facie did not disclose a cause of action.
7. Mr. Tariq- Javed learned Assistant Advocate-General appearing for the Government of N.-W.F.P.
Frankly conceded that the averments contained in the complaint and the evidence so far recorded did not constitute a case of professional misconduct entailing the penalty envisaged by the Legal Practitioners and Bar Councils Act, 1973 and the rules framed .Thereunder.
8. We have given our anxious consideration to the facts of the case. Admittedly the respondent Abdul Sattar, Advocate was the opposite counsel of S. Akhtar A.I Shah husband of the complainant and was within his right to defend the case and advance the cause of his client. Perusal of the record would show that the same proceedings were conducted by the respondent on behalf of Subugtageen defendant up to Peshawar High Court Peshawar and this matter was finally disposed off by the august Supreme Court of Pakistan against S. Akhtar A.I Shah. The evidence recorded by the learned Members of the Disciplinary Committee i.e. The statement of Shakirullah, Sub Inspector at present S.H.O. Police Station Urmar Peshawar and Bakhti Munir Madad Moharrir Police Station University Town Peshawar. Both of these witnesses are unanimous in their statements that the respondent has never misbehaved with the complainant. P.W.1 Shakirullah Khan S.I. Had specifically admitted in the cross-examination that no altercation had taken place in the Police Station and the moment he reached Aligarh Public School Peshawar the demolition work was stopped and after that no further demolition had taken place. Perusal of the written statement submitted by Abdul Sattar respondent would show that he had got some family relations with Subugtageen Principle Aligarh Public School Peshawar and on 17-8-1995 he and his other family members had been invited by Subugtageen to a dinner in his house, while in the meantime, a police Havaldar alongwith police constable knocked at the door and directed him to accompany him to the Police Station. On his arrival there, he found that the complainant was already present in the Police Station. The Police Officer forced Subugtageen to stop the demolition work as according to the police they had been asked to do so by their high ups. Thus, consequently, Subugtageen stopped the work. So, on the face of the record no case of professional misconduct has been made out against the respondent. The respondent was the opposite counsel of S. Akhtar A.I Shah husband of the-complainant and was within his right to conduct the case of his client and to fight for the rights of his clients in advancement of justice.
9. So far as the contention of the appellant is concerned, that misconduct need not be the direct consequence of the professional duty of a counsel but even if it is remotely connected with the professional duties the same will constitute a professional misconduct. There is no dispute with regard to this proposition of law but in the instant case no professional or other misconduct is discernable from the record of the case.
10. So in view of the facts and circumstances of the case narrated above, no case of professional misconduct had been made out against the respondent and the learned members of the Disciplinary Committee had rightly dismissed the complaint which calls for no interference. There is no merit in the present appeal which is hereby dismissed, leaving the parties to bear their own costs.