MUHAMMAD ALAM KHAN (MEMBER).---On 19th June, 1999 Wazir Rehman complainant filed a complaint in the N.-W.F.P., Bar Council Peshawar, alleging therein .That the elder brother of the complainant namely Sahib-ur-Rehman son of Gul Rehman was involved in a criminal case vide F.I.R. No.587 of the year, 1997, under sections 222, 224,225, P.P.C. Of Police Station, Thall and was behind the bars. The bail application of the accused Sahib-ur-Rehman had been submitted but the same was rejected upto Peshawar High Court, Peshawar; that after the rejection of the bail application, the complainant was pursuing this case through one Noor Muhammad, the uncle's son of the complainant.
2. That in this connection the respondent Mr. Zaheer-ud-Din Babar. Advocate was contacted by the complainant through one Gul Rehman, Ex---Councillor and thus, legal advice was sought regarding the bail of the accused from the respondent Advocate that the respondent taking undue advantage of the helplessness of the complainant demanded a sum of Rs.1,20,000 from the complainant and assured him that the brother of the complainant will be released on medical grounds and in case of failure to get' A the complainant's brother released on bail, the respondent promised to return the money. In short, - it was alleged that the bargain was struck with the respondent with a Money back guarantee and consequently the complainant could only arrange for Rs.10,2000 and the same was paid to the respondent Advocate.
3. That the respondent after the lapse of five months could not abide by his promise and thus the complainant approached the respondent for the return of money, out of which, the respondent returned Rs.64000, while the respondent refused to return the balance amount of Rs.38,000 to the complainant `on which the complainant approached the District Bar Association, Kohat and contacted Khurshid Anwar arid Momin ,Shah, Advocates who in turn contacted the respondent to return the balance amount, but the same too, was proved unsuccessful. It was alleged, that as the respondent had indulged himself in malpractices so it was prayed that after detailed enquiry proceedings under the law be initiated against the respondent.
4. That the complainant had also submitted a similar complaint to Malik Mujtaba Ahmad, learned District and Sessions Judge; Kohat in which precisely the same allegations had been levelled against the respondent and the learned District and Sessions Judge, Kohat had also sent that complaint alongwith the reply of the respondent and statement' of the complainant recorded on oath, to the N.-W.F.P. Bar Council for necessary action according to law. The statement of the complainant before the learned District and Sessions Judge, Kohat is reproduced as under:-- Statement of Wazir Rehman son of Gul Rehman aged about 25 years R/o Village Chichana, Tehsil and District, Kohat on Oath:-- "Sahib-ur-Rehman accused is my elder brother. He is charged in case F.I.R. No.587 of Police Station, Thall whose application for bail was rejected upto High Court. The Member of our Illaqa Gul Rehman introduced us to Zaheer-ud-Din Babar, Advocate that he would arrange bail of my brother for us. Zaheer-ud-Din Babar, Advocate was seen by us at his residence/office alongwith Noor Muhammad and Gul Rehman, Councillor. Zaheer-ud-Din Babar demanded Rs.1,20,000 and assured us that he would get the accused released on bail for a sum of Rs.1,20,Q00. He has repeated time and again that if he could not he would return double of the amount to us which he has received from us. We could arrange Rs.1,02,000 which he has agreed to receive and again moved the application but he did not succeed in bailing out our brother. So we, through the Councillor requested him through Jirga to return us money but he only returned Rs.64,000 and rest of the amount i.e. Rs.38,000 is not being returned ,by him. So I moved the present application. All the contents of my application are correct.
RO&AC 24-5-1999,(Sd.) Wazir Rehman s/o Gul Rehman NIC No.143-91-169027.(Sd.) Malik Mujtaba Ahmad District and, SessionsJudge, Kohat. "
5. That a similar complaint submitted by the complainant was also forwarded by Registrar Peshawar High Court Peshawar vide Letter No.5138 dated 9-6-1999 to the N.-W.F.P. Bar Council Peshawar for necessary action according to law.
6. The Disciplinary Committee of the N.-W. F. P. Bar Council initiated proceedings against the respondent and the respondent in spite of so many letters sent to him tried to avoid appearance and was thus, proceeded against ex parte. The Disciplinary Committee of the N.-W.F.P. Bar Council after recording of evidence of the complainant and considering the data available on the record, referred the matter to this Tribunal for adjudication.
7. On receipt of the file, notice was issued to the respondent for 25-9-1999 by this Tribunal, on which date counsel for the respondent submitted an application for setting aside ex parte order passed against the respondent which was allowed on the same date on payment of costs of Rs.One thousand and the Disciplinary Committee was directed to record evidence of the respondent which was recorded and the learned members of the Disciplinary Committee again referred this matter vide order dated 21-11-1999 to this Tribunal for decision.
8. Mr. Tariq Javed learned Assistant Advocate General appearing for the Government contended that as the respondent under the robes of an 8 Advocate and under the cover of the legal profession has cheated the complainant, has thus, committed professional misconduct and the same be sternly dealt with.
9. Mr. Amjad A.I learned counsel for the respondent contended that the money received by the respondent was for professional duties of the respondent as an Advocate and in fact, the respondent submitted a bail application of the complainant's brother before the Judicial Magistrate Mangu, but the same was rejected and submitted, that as the respondent has performed his professional duty as an Advocate, so the respondent has not committed any misconduct," entailing the penalty provided by section 41 of the Legal Practitioners and Bar Council Act, 1973.
10. We have given our anxious consideration to the facts and circumstances of the present case.
The complainant's statement was recorded, on oath by the learned District and Sessions Judge Kohat, wherein the complainant categorically stated on oath that the huge amount of Rs.10,2000 was received by the respondent for release on bail of the complainant's brother with a money- back Guarantee, in case of failure to secure the bail order from the Court, while submitting complaint to the N.-W.F.P. Bar Council and Peshawar High Court Peshawar an affidavit 'has been annexed, to the effect that the contents of the complainant are correct, which affidavit is on a proper stamp paper duly attested by an Oath Commissioner of Kohat and duly submitted to N.- W.F.P. Bar Council Peshawar.
11. During the ex parte proceedings the statements of the complainant and that of Noor Muhammad were recorded by the Disciplinary Committee of the N.-W.F.P. Bar Council, wherein they fully supported the complaint and the allegation levelled against the respondent, who was fully implicated for professional misconduct.
12. That after the ex parte proceedings were set aside by this Tribunal fresh evidence was recorded in the shape of statements of complainant Wazir Rehman and Gul Rehmat as P.W.1 and P.W.2 respectively, while respondent appeared as a sole witness for himself and recorded his statement.
13. As the complainant Wazir Rehman had also submitted an application to Mr. Malik Mujtaba Ahmad learned District and Sessions Judge Kohat, with similar allegations, upon which the learned Judge had recorded the statement of the complainant on oath as reproduced in para No.4 of this judgment, which was subsequently disowned by the complainant in his statement before the Disciplinary Committee of the N.-W.F.P. Bar Council Peshawar, after the ex parte proceedings were set aside by this Tribunal against the respondent. So we deemed it proper to record the statement of the learned District and Sessions Judge Kohat and for this purpose Mr. Qaiser Rashid Advocate/Member, N.-W.F.P. Bar Council was appointed as Local Commissioner to record the statement of the learned Judge which was duly recorded on 5-4-2000 from which it is abundantly proved on the record that the complainant submitted an application to the learned District and Sessions Judge Kohat, upon which the reply of the respondent was called for and the respondent submitted the reply, and thereafter, the learned Court recorded the statement of A.I Rehman complainant on Oath, in which he supported the allegations and receiving of Rs.10,2000 by the respondent. As the statement of Malik Muhtaba Ahmad, learned District and Sessions Judge, Kohat was recorded and the factum of appearance of the complainant and recording of his statement on Oath before the learned Court has duly been proved, so much weight and credence must be given to the Court proceedings, the authenticity of which cannot be doubted in any way.
14. During the proceedings before this Tribunal, the complainant appeared before us and recorded the following statement:------ "Statement of Wazir Rehman s/o Gul Rehman R/o Village Chichana. Tehsil and District Kohat on Oath:-- I have submitted a complaint to the District and Sessions Judge, Kohat and in connection with the said complaint my statement was also recorded by the Sessions Judge, Kohat. I have stated to the Sessions Judge that my brother was charged in a case F.I.R. No.587 and after rejection of his bail application I contacted Gul Rehman, a Councillor of our Illaqa who told me that he would arrange his meeting with Zaheeruddin, Advocate for doing the needful. Gul Rehman met him and then he asked me for payment of Rs.1,20,000 (One lac twenty thousand), but I had paid Rs.1,02,000 (One lac two thousand) to Gul Rehman. When the learned counsel did not succeed in getting bail of my brother, then 1 asked the said counsel for return of the said amount out of which Rs.64,000.(Sixty four thousand) was paid to me while remaining Rs.38,000 (thirty eight thousand) were still outstanding, Meanwhile the Councillor went to Karachi and told me that I should contact the Advocate for getting the balance of Rs.38,000. I contacted him but he flately refused and on return of the said Councillor from Karachi, the, remaining amount of Rs.38.000 was paid to me. I have not stated before the Sessions Judge that, "Zaheeruddin was seen b3, us or at his residence/office alongwith Noor Muhammad and Gul Rehman Councillor".
Zaheeruddin demanded Rs.1,20,000 and assured us that he would get the accused released on bail for a sum of Rs.1,20,000. In fact it was Gul Rehman Councillor and not Zaheeruddin Babar. I have correctly stated that Rs.38,000 have not been paid to me till that time. Today I have seen the complaint Exh.A.W.I/1 submitted to the Sessions Judge and I have also seen my statement A.W:I/2 recorded by the Sessions Judge dated 24-5-1999, which' bear my 'signature. My statement was recorded twice by the Disciplinary Committee, once during the ex parte proceedings against the respondent and again in his presence. Today I have seen my previous statement which bears my signature. The statement which was recorded subsequently was read over to me today, which is correct.
RO&AC(Sd.) x x Dt.10-11-2000 Chairman (Sd.) Member.
(Sd.) Member. , (Opportunity given).
RO&AC 22-12-2000 (Sd.) Chairman.
(Sd.) Member.
(Sd.) Member.
The reproduction of the above statement recorded on oath would show, that the complainant has fully charged the respondent for misconduct committed by him and in rebuttal no evidence has been led to shatter the veracity of the evidence recorded in this case, so much so, that the complainant was not cross-examined by the respondent in spite of the fact that a chance of cross-examination was provided to the respondent on .22-12-2000, but the respondent opted not to cross-examine the complainant.
15. While scanning the evidence on record, would show that the complainant has narrated the same version of paying Rs.102000 but with an addition that this amount was paid to Mr. Gul Rehman, which was laying with him and on his return after the rejection of -the bail petition of the brother of the complainant, was returned by Gul Rehman to the complainant. Similar version is given by Gul Rehman P. W.11, who admitted that Rs.11,000 was paid to the respondent, while the rest of the amount was kept as "Amanat" (for safe custody) with Gul Rehman P.W. This improvement in the evidence will' neither exonerate the respondent nor give any benefit to him in a charge of professional misconduct. If the professional fee of the respondent was Rs.11000, then why a huge amount of Rs.1;02000 was either received by the respondent or P.W. Gul Rehman and the unavoidable inference is that the consequent improvements is made just to settle the matter amicably and to exonerate the respondent at the belated stage of the proceedings. Charge of misconduct against an Advocate cannot be even withdrawn on the ground of compromise as held by his Lordship Mr. Justice Irshad Hassan Khan, learned Chairman of the Punjab Bar Council Tribunal as His Lordship then was, in the case of Muhammad Amin v. Mr. Isghar Khokhar Advocate reported in CLC 1992 Page 1556.
16. An Advocate enjoys a very high position in the society and is the custodian of the rights of the general public and he is expected to uphold at all times the high standard and dignity of the profession as well as his own dignity as a Member of the society and to conduct himself in such a way, so as to give least suspicion of misconduct and corruption to the general litigants, not to speak of his own clients, at whose behalf the Advocate is conducting the case before a Court of law. Court of law gives extreme respect to the Advocates as they are considered to be the Officers of the Court and great trust and confidence is reposed in them by Courts of law and any violation or betrayal of this trust by them will be a conduct stinkingly abominable and will amount to a professional misconduct as provided by Rules 134 and 172 of the Legal Practitioners and Bar Council Rules, 1976 and any violation of the same will render an Advocate liable to the penalties provided by section 41 of the Legal Practitioners and Bar Councils Act, 1973, in view of Rule 175-A of the Rules ibid.
17. Perusal of evidence on record would reveal, that the complainant has admitted that Rs.64,000 was returned by the respondent, while the remaining Rs.38,000 has been returned by Gul Rehman Councillor. So the complainant has been fully compensated and his grievance to that extent has been redressed, as the entire amount of Rs.1,02,000 has been returned to the complainant which is a relevant factor in determining the quantum of punishment, but not for dropping the proceedings for professional misconduct against the respondent.
18. In view of the facts and circumstances of the case narrated above, we find the respondent guilty of-professional 'misconduct under section 41 of the Legal Practitioners and. Bar Councils Act and taking lenient view reprimand him with costs of rupees fifteen thousand (Rs.15,000) (costs of the proceedings) 'payable to the N.-W.F.P. Bar Council, Peshawar under section 44 of the said Act.