In 1989 Muhammad Dawood Khan and Tariq Mehmood (Plaintiffs/Decree-Holders) filed Suit No,224 of 1989 in the High Court for Specific Performance and Permanent Injunction against Elyas Ameen and others (Defendants/Judgment-Debtors) seeking, inter alia, a direction to the defendants to execute a Sale-Deed pursuant to their Agreement of Sale dated 30-11-1988 in respect of Property Unit bearing Original Survey Sheet No,13-A measuring 1972 sq. Yds. And Original Survey Sheet No,13- C, measuring 236 sq. Yds. (in total measuring 2208 sq. Yards) situated on Victoria Road (renamed as Abdullah Haroon Road), Karachi and in case of failure of the defendants to do so, direct the Nazir of the Court to execute a sale-deed on behalf of the defendants in favour of the plaintiffs. On 15-7-1997 the plaintiffs and Elyas Ameen (defendant No,1) for self and as an Attorney of defendants Nos. 2 to 5 filed a Compromise Application under Order 23, Rule 3 read with section 151, C.P.C. Duly signed by them and the suit was accordingly decreed in terms of the compromise dated 14-7-1997 with no order as to costs. According to the terms of the Compromise Application Muhammad Dawood Khan (plaintiff No,1) became the joint co-owner to the extent of 50 per cent. Of the said plot of land.
2. It transpires that the said plot of land was one of the assets of two companies namely Alliance Motors (Pvt.) Ltd. And T.J. Ebrahim which were in the process of liquidation pursuant to the orders of this Court passed in J. Miscellaneous No,1 of 1989 and J. Miscellaneous No,74 of 1989 respectively and was in the custody of the Official Assignee/Official Liquidators appointed by the Court. As there was apprehension of encroachment of this plot, on 5-1-1992 the High Court on the Reference of Official Assignee/Official Liquidator directed the Deputy Commissioner (Karachi South) to take possession of and remove any encroachment from Plots Nos.13-A and 13-C, Saddar Bazar Quarters, Abdullah Haroon Road. The District Magistrate (Karachi South) by his Report dated 9-1-1992 informed the Court that he had taken possession of the land after removing the encroachments/trespassers and had duly locked the premises. While the aforesaid property was in possession of the Deputy Commissioner, Karachi South, it came to the knowledge of the Official Assignee/Joint Liquidators that some persons had illegally occupied the premises; consequently the Joint Liquidators submitted Reference No,84 dated 15-3-2000 in J. Miscellaneous No,1 of 1989 and J. Miscellaneous No,74 of 1989 requesting the Court to direct the District Magistrate to remove the encroachers from the said property. On 11-4-2000 Shoib Ahmed Siddiqui, Deputy Commissioner, Karachi South appeared in Court and submitted that it was not possible for the administration to keep the property secure from encroachers. After hearing the Joint Liquidators, the Official Assignee and other Advocates, it was agreed that the Deputy Commissioner, (Karachi South) shall hand over the vacant physical possession of the property free from all encroachers to the Joint Liquidators on 19-4-2000 where after the latter shall be at liberty to appoint their own Security Guards/Chowkidars as deemed necessary. The Deputy Commissioner, Karachi South complied with the Court's order and the property was handed over to the Joint Liquidators and the D/A, who was one of the Joint Liquidators, posted his Chowkidars on the property.
3. On perusal of the file of J. Miscellaneous No,1 of 1989 it transpires that on 26-4-2000 Mr. Raja M.
Irshad, Advocate filed his Vakalatnama on behalf of ElyasAmeen as Intervener in the proceedings.
The Order dated 26-4-2000 reads 8 follows:-- "Mr. UsmanGhani Rashid, Advocate. Mr. Farogh Naseem, Advocate. Mr. Raja Muhammad Irshad, Advocate. In view of the office note C.M.A. No,2055 of 1999 is adjourned to a date in office. Mr. Raja Muhammad Irshad submits that he is interested in Plot No,13-A, F.D-6, Victoria Road, Karachi which is under dispute since 1989 and no progress has been made so far. In view of the above Official Assignee is put on notice to assist the Court for resolving the dispute as early as possible, for that purpose to come up on 3-5-2000."
[Note.--C.M.A. No,2055 of 1999 was an application filed by some party in the proceedings under Order 39, Rule 2(3), C.P.C. For taking action against certain persons who had violated the Court's Order in respect of another property].
4. On 3-5-2000 four Miscellaneous Applications and five 0/L's References were fixed for hearing in Court. The Order Sheet of the said date reads as follows:-- "Mr. Shakeel Ahmed, Advocate. Mr. Raja M. Irshad, Advocate. Mr. ShafiMohammadi, Advocate. Mr. Bashir Ahmed Memon, O.A. To be fixed on 10-5-2000. Mr. Raja M. Irshad, Advocate appearing for intervener Ilyas Amin in respect of the property No, Plot 13-A, SB-6, appearing on Serial No,19 of the list of properties in the petition submits that this is a very old matter and in spite of repeated orders of the Court enquiry has not been completed and his client suffering irreparable loss. He however, agrees that as a last chance two months' time be granted to Mr. Shafi Mohammadi, Advocate, one of the Joint Liquidator to complete the enquiry and submit his report. . In case the report is not submitted within two months, the matter will be decided by the Court on merits."
5. On perusal of the file of this Execution Application, it transpires that on 19-4-2000 Muhammad Dawood Khan, plaintiff No,1 in Suit No,224 of 1989 filed Execution No,87 of 2000 for execution of the Compromise Decree dated 15-7-1997 requesting the Court to direct the Nazir "to carry out bifurcation to the extent of 50% of amalgamated Plot No,13-A. Survey Sheet SB-6, admeasuring 2208 sq. Yds. Abdullah Haroon Road, Karachi and execute sale-deed thereof in favour of the Applicant/Decree-Holder, under Order 21, Rule 34, C.P.C. The Execution Application was also signed by Mr. Raja M. Irshad, Advocate for the Decree-Holder. On further perusal of the file of the Execution Application, it appears that the Additional Registrar (U.S. II) raised several objections, inter alia, requiring the Decree-Holder to explain how a sale-deed could be executed by the Nazir as there was no such direction in the decree and that the decree did not disclose any execution of the document or that both parties remained in joint possession of the plot. In response to the aforesaid office objections Mr. Raja Irshad on 10-5-2000 endorsed the following reply: "The judgment-debtor Mr. Elyas Amin may be directed to execute the Compromise Decree in respect of Plot No,13-A Survey Sheet SB-6 admeasuring 2208 sq. Yds. Abdullah Haroon Road, Karachi as the Decree-Holder Mr. Dawood Khan is an exclusive owner of the said plot on the basis of the said Compromise Decree."
6. On 23-5-2000 the main Execution Application was listed before me for orders on an application for urgent hearing and another Miscellaneous Application under section 151, C.P.C. Being C.M.A.
No,1292 of 2000 filed by Elyas Ameen. Judgment-Debtor requesting the Court to order bifurcation to the extent of 50% of the amalgamated Plot No,13-A, Survey Sheet No,SB-6, Abdullah Haroon Road, Karachi. The application was supported by an Affidavit of Elyas Ameen stating, inter alia, that he "shall hand over the possession of such land to Mr. Dawood Khan son of Muhammad Shamsher Khan who is Decree-Holder after having executed conveyance deed in his favour". On 23-5-2000 Elyas Ameen also filed a statement in the following terms: "I, Elyas Ameen son of Ahmed Ali, Judgment-Debtor in the above Execution Application undertake to satisfy the compromise decree dated 15-7-1997 by carrying out the bifurcation of Plot No,13-A, Survey Sheet SB-6, admeasuring 2208, sq. Yds. Abdullah Haroon Road, Karachi, to the extent of 50% of the said plot and shall hand over the possession of such land to Mr. Dawood Khan who is a decree-holder, after having executed a conveyance deed in his favour. The process of bifurcation, execution of sale-deed and handing over possession will be completed within one week. The above-noted execution application may be disposed of in terms of my above statement."
7. When the case was called Mr. Raja M. Irshad, Advocate appeared for the Decree-Holder while Elyas Ameen, Judgment-Debtor was present in person. He was identified by Mr. Irshad who after reading the application transcribed his endorsement of identification on the statement filed by Ameen. After reading the affidavit and statement of Ameen and obtaining confirmation from Mr. Irshad that everything was proper and in order, by consent of both persons, the Interlocutory Application and the Main Execution Application were disposed of in terms of the statement of Ameen reproduced above.
8. On 26-5-2000 the Official Assignee filed an urgent Reference for orders by the Court. Mr. Raja M.
Irshad, Advocate for the Decree-Holder was also present when the matter was called. The Official Assignee supplied a copy of his Reference to Mr. Irshad who waived notice of the same. By his reference, the Official Assignee informed the Court that on 25th May, 2000 his Chowkidars had reported to him that on the preceding night Dawood Khan, the Decree-Holder along with 4 to 5 persons by using force had entered the plot, broken a wall and fixed a door therein when the plot was in the possession of the Official Assignee which fact was within the knowledge of Mr. Irshad and Elyas Ameen who deliberately concealed this very relevant fact from the Court on 23-5-2000 when it was hearing the Execution Application and the Interlocutory Application.
9. From perusal of the documents attached with the reference some of the contents of which have been mentioned and, or reproduced above, it was crystal clear that on 23-5-2000 when the Execution Application was granted with the consent of the Decree-Holder and the Judgment- Debtor, the possession of the property was not with ElyasAmeen, Judgment-Debtor but with the Official-Assignee and that Mr. Irshad, learned counsel for Decree-Holder, had full knowledge of this fact because in the proceedings of J. Miscellaneous No,1 of 1989 on 26-4-2000 this Court had on his submission passed an order in respect of the property in question and again on 3-5-2000 in his presence the Court had directed Mr. Shafi Mohammadi, one of the Joint Liquidators to hold an inquiry in respect of the property, which was in the possession of official assignee. This fact was not brought to the knowledge of the Court either by the judgment-debtor or Mr. Irshad. The Miscellaneous Application as well as the statement filed by judgment-debtor before this Court were patently false to the knowledge of both the judgment-debtor and the Decree-Holder. As an advocate it was the duty of Mr. Irshad to inform the Court that an inquiry about the property in question had been ordered by the Court in J.M. No,1 of 1989 and that the property was in the possession of the official assignee. A very material fact was withheld from the Court which resulted in passing of the order on 23-5-2000 the foundation of which was based on concealment of relevant facts by the parties which included Mr. Irshad, an advocate and an officer of the Court.
10. The acts of the decree-holder and the judgment-debtor described above had induced the Court to pass an improper order which was based on false information, misrepresentation and withholding material and relevant information from the Court which was patently unsustainable and required immediate corrective measure. However, Mr. Irshad submitted that there was a distinction between title to property and possession of the property and therefore, the Order obtained by him on 23-5-2000 was proper and sought time to file objections to the official- assignee's Reference. In the interest of justice Mr. Irshad was permitted to file his objections and address the Court on the issues arising from the facts stated above and the hearing was adjourned, to 14-6-2000. Meanwhile, to meet the ends of justice it was necessary to restore status quo ante; accordingly, all orders dated 23-5-2000 were withdrawn and annulled and the official- assignee was directed to order S.H.O., Artillery Maidan Police Station to remove all persons and unauthorised movable property from the plot within 24 hours and take appropriate action against the intruders and the persons who had interfered with the possession of the official assignee and consequently restore vacant possession to him.
11. On 14-6-2000 Mr. Raja Irshad, learned Advocate for the Decree-Holder stated that he did not wish to file any objection to the official-assignee's Reference dated 26-5-2000 for which he had sought time or submit any argument opposing the same. After hearing his submissions, Orders on the official-assignee's Reference were reserved.
12. On research of the relevant law the following position has emerged. In Surah Al-Baqarah II, Ayat 283, Allah has ordained: "Do not suppress any evidence, for he who conceals evidence is sinful of heart, and God is aware of all you do." Similarly in Sura Al-Nisa IV, Ayat No,135 it is ordained: "135. 0 ye who believe!
Stand out firmly For justice, as witness To Allah, even as against Yourselves, or your parents, On your kin, and whether It be (against) rich or poor: For Allah can best protect both. Follow not the lusts (Or your hearts), lest ye swerve, and if ye Distort (Justice) or decline To do justice, verily Allah is well-acquainted With all that ye do.
(Underlining added).
13. In Halsbury's Laws of England, 4th Edition, Volume 3(1), Paragraph 415 it is stated: "Counsel is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession, and to the public, to ensure that it is achieved. Thus counsel must not mislead the Court.... " . In Meek v. Fleming (1961) 2 QB 36, the defendant's Counsel who had knowledge of the fact did not inform the Court during the trial that the defendant had been reduced in rank by a disciplinary board to station sergeant for being party to an arrangement to practice a deception on a Court of law in the course of his duty as a senior police officer. The Court while remanding the case for a new trial held that the conduct of the Counsel in concealing the fact was wrong and his duty to the Court was unwarrantably subordinated to his duty to his client. At the end of the proceedings the counsel made the following explanation and apology to the Court: "Durand Q.C. I indicated last week in the course of my argument before your Lordships that I took responsibility for the decision; I hope that the words I used then left the Court under no misunderstanding as to my personal responsibility. It is right that should say as emphatically and clearly as I can that the decision not to make disclosure of the defendant's change of status was mine, and mine alone. Having come to the conclusion that this course was justifiable, I determined and dictated the policy which was thereafter followed during the course of the trial. Neither any learned junior counsel, Mr. Stabb, nor my instructing solicitor was responsible for initiating or pursuing that policy, and indeed they expressed their disapproval of it. I thought it right having regard to the observations made last week, to make that statement before your Lordships in open Court, and I am very grateful to your Lordships for allowing me to make it."
It is pertinent to mention here that the Queen's counsel in spite of the above submission to Court was subsequently disciplined by the Inn for his improper conduct of concealment of a relevant fact from the Court.
14. A Division Bench of this Court in C.P. No,D-214 of 1999, Muhammad Sadiq and others v. Ruqayia Khannum and others, while exhaustively dealing with the duty of counsel to Court in light of the Injunctions of the Holy Qur'an and the Rules of Professional Ethics as practiced in civilized societies has held that a Muslim lawyer is enjoined not to conceal any evidence or law and place all facts and law before the Court even if it be against his client so that the adjudicator may do justice in accordance with law. I regret to note that Mr. Irshad, We learned counsel for the Decree-Holler, violated the Injunctions of the Holy Qur'an, the Rules of Professional Ethics, Norms of Decency and was guilty of concealment, misrepresentation and fraud upon the Court.
15. On 23-5-2000 when Elyas Ameen swore an affidavit in support of C.M.A. No,1292 of 2000 that he was ready to satisfy the Compromise Decree by carrying out the bifurcation of Plot No,13-A, admeasuring 2208 sq. Yards, Abdullah Haroon Road, Karachi to the extent of 50 per cant of the said plot and hand over possession of the land to Mr. Dawood Khan. He made a false statement on oath because his statement clearly implied that he was in possession of the plot of land and he was in a position to bifurcate the plot and hand over possession of the bifurcated plot to the Decree-Holder when the real fact was that he was not in possession of the property and the Joint Liquidators were in possession of the same through the official assignee who had posted his Chowkidars to protect it from intruders and trespassers. Further his statement filed on the same date confirming the facts of the affidavit was also false which led this Court to pass an order on the basis of false information provided by him. He committed an offence under sections 181 and 182, P.P.C. Which is punishable with imprisonment.
16. In his compliance of the office objection on 10-5-2000 Mr. Irshad did not give a straightforward and unequivocal answer but responded in a roundabout way to mislead the Court that the judgment-debtor was in a position to comply with the request of the Decree-Holder even though the decree did not contemplate the execution in the mode requested. Oh23-5-2000 when the Execution Application and the interlocutory application (C.M.A. No,1292 of 2000) came up for hearing it was the duty or Mr. Raja Muhammad Irshad, learned counsel for the Decree-Holder to bring it to the notice of the Court that the plot in question was in the possession of the Joint Liquidators through the Official Assignee. In spite of full knowledge of the facts and the knowledge that it was his duty to bring such information to the notice of the Court, he knowingly omitted to do so to obtain an order in favour of his client. The willful omission of the learned counsel is further confirmed by the fact that he identified Elyas Ameen, the judgment-debtor and endorsed his identification on a patently false statement filed by Ameen, Mr. Raja Irshad thus violated not only the Injunction of the Holy Qur'an and the provisions of section 181, P.P.C. But also the Rules of Professional Conduct and Etiquette of Pakistan Bar Council. By his improper conduct he also induced this Court to pass an order the foundation of which was based upon falsehood perpetrated by Elyas Ameen, the judgment-debtor to which he was a party.
17. On the night of 25-5-2000 Muhammad Dawood, Khan the Decree-Holder along witti four to five persons by use of force entered the property which was in the possession of the' Joint Liquidators through Chowkidars appointed by the Official Assignee. He knowingly obstructed a public servant in the discharge of his duty to keep the property secure from encroachers and trespassers and thus violated Lae provision of section 186, P.P.C. Further when Dawood Khan along with his accomplices by use of force entered into/upon Plot No,13-A, Abdullah Haroon Road, Karachi which was in possession of the Official Assignee broke the wall and fixed a door therein, all of them committed criminal trespass punishable under section 441, P.P. C .
18. The statement of Mr. Raja Muhammad Irshad, learned counsel for the decree-holder, that he did not wish to file any objection to 0/A's Reference dated 26-5-2000 or address any argument opposing the reference confirms that all the three persons mentioned above violated the Injunctions of Holy Qur'an, the Pakistan Bar Council Rules and the provisions of P.P.C. It is a matter of grave concern. If such acts are overlooked by the Court it would amount to encouraging people to violate the law without fear. Such conduct ought not to be overlooked or excused as it would obstruct the administration of justice and induce people to take the law in their own hands thereby creating serious law and order situation and chaos in society. It is therefore, necessary that strict action be taken against all the persons who violated the law of the land and interfered in the administration of justice so that in future such acts are not repeated by any one. Accordingly, the Official assignee is directed to take the following action:
(i) File a complaint against Mr. Raja Muhammad Irshad, Advocate with the Sindh Bar Council for violation of the Canons of Professional Conduct and Etiquette of Advocates. He shall forward a copy of this Order to the Sindh Bar Council and all relevant documents to enable its Disciplinary Committee to take appropriate action against him.
(ii) File himself or through his representative a complaint against Elyas Ameen under sections 181 and 182, P.P.C. For filing a false affidavit and furnishing a false statement in the execution proceedings. He shall supply all relevant documents from the related litigation to the appropriate Court for such action.
(iii) On the basis of the report of the Chowkidars he shall file an F.I.R. Against Muhammad Dawood Khan and his 4/5 accomplices under sections 186 and 441, P.P.C.
(iv) The decree in Suit No,224 of 1989 whose execution was sought in the Execution Application is admittedly a Compromise Decree passed during the pendency of J. Miscellaneous 1 and 74 of 1989.
The manner in which both the Degree-Holder and the Judgment-debtor proceeded to execute the decree with undue haste by knowingly making false statement casts doubt on the Compromise decree itself. He shall therefore take steps to place a copy of this Order in the file of J. Miscellaneous 1 of 1989 and bring it to the attention of Mr. Shah Muhammadi, Advocate, one of the Joint Liquidators and the learned Judge when he is considering the representation of Dawood Khan and Elyas Ameen in respect of the title of Plot No,13-A, Abdullah Haroon Road, Karachi, admeasuring 2208 sq. Yards so that the matter may be decided with a full knowledge of all the relevant facts in the interest of justice.