MUHAMMAD ALAM KHAN (MEMBER).---On 16th December, 1999 Ziarat Wali Shah complainant filed a complaint in the N.-W.F.P. Bar Council Peshawar alleging therein that the respondent Advocate is a practicing Lawyer at District Courts Chitral; that the complainant's daughter Mst. Pari Bibi and her minor children were pursuing a suit for the recovery of dower and maintenance, which was pending in the Court of Senior Civil Judge Chitral and the same was ultimately decided in her favour; the husband of the complainant's daughter could not arrange for the decretal amount in lump sum and thus in execution of the decree the learned Judge of the Family Court Chitral sent the husband of the complainant's daughter to the civil prison, being a judgment-debtor and there he remained behind the bars for so many months.
2. It is further averred in the complaint that the husband of the complainant finally sold- his landed property and arranged for the decretal amount of Rs.1,75,000 and paid the same to the decree- holder Mst. Pari Bibi in the Court. The respondent Advocate being the counsel of the complainant's daughter in the execution proceedings retained Rs.100,000 on the pretext that the same has to be utilized by him as loan. The complainant when came to know regarding the conduct of the respondent approached the respondent and requested for the return of money but the respondent flatly refused and so the complainant also paid the remaining 75000 rupees to the respondent as a protest.
3. That further allegation in the complaint is that the complainant submitted an application to the learned Senior Civil Judge Chitral on the same day which was marked to the local police and a case under sections 382/420, P.P.C. Was also registered vide F.I.R. No. 341, dated 15-12-1999 of Police Station Chitral so it was prayed that as the respondent has betrayed the trust of the complainant's daughter being his client thus, the respondent has committed a gross professional misconduct and legal action under the law was prayed for:
4. That the Disciplinary Committee of N.-W.F.P. Bar Council initiated proceedings against the respondent and the respondent submitted a detailed written statement on 29-4-2000 refuting the allegations in the complaint. However, it was admitted that a decree for maintenance and dower was passed by the Senior Civil Judge Chitral but the same was conditional that in case of payment of decretal amount the complainant's daughter will have to get back to her husband and will live with him. The Disciplinary Committee of N.-W.F.P. Bar Council, after considering the evidence available on record referred the matter to this Tribunal for final adjudication vide Reference dated 15-5-2000.
5. Before this Tribunal on 11-7-2000 the respondent submitted an application alongwith a list of witnesses seeking permission to lead further evidence under section 43 of the Legal Practitioners and Bar Councils Act, 1973, which permission was accordingly granted to the respondent and one of the members of this Tribunal (Muhammad Alam Khan) was empowered to record evidence and consequently evidence of the respondent as per list submitted by him was recorded on 24-8-2000.
6. Mr. Noor Muhammad Khan Advocate learned counsel appearing for the complainant submitted that on the basis of the evidence recorded in this case the charge of professional misconduct has been proved against the respondent. Elaborating his view point the learned counsel submitted that the presence of the respondent as counsel of Mst. Pari Bibi at the time of payment of the decretal amount to her in Court by the judgment-debtor, has been admitted by the respondent in his statement recorded in this case. The complainant has produced overwhelming evidence to prove that after payment of decretal amount to Mst. Pari Bibi, respondent retained Rs. One hundred thousand and the statements of the witnesses have not been shattered in the cross-examination.
7. The learned Assistant Advocate General vehemently, contended that the charge of misconduct has been proved against the respondent and no evidence in rebuttal has been produced by the respondent to challenge the veracity of the complainant's witnesses
8. Mr. M. Arif Advocate appearing for the respondent made two-fold submissions, firstly that on the existing evidence on the record no case of professional misconduct has been proved against the respondent, the respondent conducted the case of the complainant's daughter successfully and she herself received the decretal amount of Rs.1,75,000 in Court in the presence of the respondent and. Presiding Officer of the Court. The respondent never received any amount and alternatively even if, the allegations as made in the complaint, if admitted to be correct would at the most make out a case of civil liability against the respondent and will not attract the penal provisions of section 41 of the Legal Practitioners 'and Bar Councils Act 1973. It was next submitted that a case under sections 382/420, P.P.C. Has already been registered against the respondent which is pending trial and present proceedings could not be initiated against the respondent on the principle of double -jeopardy. '
9. We have given our anxious consideration to the facts and circumstances, in which the present complaint was filed in the N.-W.F.P. Bar Council Peshawar. The fact that the respondent was conducting the case of Mst. Pari Bibi and his presence before the Court at the time of the payment of decretal amount has not only been proved but also admitted by the respondent. The respondent has himself produced evidence to the effect that he was a defaulter of the Small Business Finance Corporation Chitral and a warrant of arrest had been issued against him. This is a circumstance which led support to the version of the complainant.
10 The prompt action of the complainant in submitting an application to the executing Court summarising the allegations which culminated in registration of case at the instance of the Court is another factor which throws doubt at the credentials of the respondent.
11. The bulk of evidence recorded in this case has sufficiently proved, that the respondent retained a huge sum of money of Mst. Pari Bibi and her minor children. The respondent being the counsel of the lady and her children a fiduciary relation was existing between them. An Advocate enjoys a high position in the society and is expected to conduct himself in a way as to give the least suspicion of betrayal of trust. Great trust is reposed in Advocates by the Clients as well as Courts and any betrayal of this trust would amount to professional misconduct.
12. The contentions of the learned counsel for the respondent that the present proceedings are barred because a case under sections 382/420, P.P.C.. Has already been registered is without merit, as the instant proceedings are disciplinary in nature and the same have got no nexus with the criminal liability of the respondent. The respondent was an Advocate for the complainant's daughter and her minor children and any amount taken from the client without justification: is a conduct unbecoming of a counsel and is the violation of a sacred trust which is always reposed in Advocates by their Clients. In the matter of G. Narasim Hachori reported in AIR 1925 Madras Page 797, it was held that any embezzlement of the client's money by a counsel will amount to professional misconduct of .The gravest nature and the conduct will be abominable.
13. We are also conscious of the fact that the charge of misconduct when proved entails severe consequences of removal from practice but we have not only to save the legal profession from being eroded, but also to save the administration of justice as well as the interests of the general public.
14. In view of the facts and circumstances of the case narrated above, we find the respondent guilt) of gross professional misconduct and order his suspension from practice for a period of two years commencing from today i.e. 12-1-2001 with direction to the respondent to refund Rs.1,75,000 (one lac seventy five thousand) to Mst. Pari Bibi, daughter of the complainant alongwith interest at the rate of 12% from 15-12-1999 till the payment of the same with costs of Rs.10.000 (ten. Thousand) payable to the complainant under section 41 read with section 44 of the Legal Practitioners and Bar Councils Act, 1973.