' MUHAMMAD ALAM (MEMBER).--- On 5-10-1996 Aurangzeb complainant filed a complaint against Istikhar Ali, Advocate resident of Ismaila District Swabi respondent alleging therein that respondent is a P.T.C. Teacher and is posted as such in Government Masjid Primary School, Babi Khel, Ismaila District Swabi. It is further alleged that the despondent was appointed as P.T.C. Teacher on 3-3-1987 and during the cistenure of his service, he secured the LL.B. Degree from a Law College of Karachi University. Thereafter, he completed his apprenticeship for one year and is attached to the legal profession and is practising law at District Courts, Swabi.
2. Further allegations in the complaint are that on one hand the respondent is drawing salary from Education Department and on the other hand the respondent is undergoing his apprenticeship in District Courts premises Swabi, so it was alleged that as the respondent has indulged himself in the commission of professional misconduct so strict action under the law according to the Legal Practitioners and Bar Councils Act, 1973, was prayed for.
3. That the Disciplinary Committee of the N.-W.F.P. Bar Council initiated proceedings against the respondent and pursuant to notice he appeared before the Committee and recorded his statement denying the allegations as contained in the complaint. It was averred by the respondent in the written reply, that the respondent is not an Advocate but only a Teacher, that the respondent has never been enrolled as an Advocate by the N.-W.F.P. Bar Council and thus the complaint was termed as based on personal malice and grudge of the complainant.
4. That the members of the Disciplinary Committee of N.-W,F.P. Bar Council, Peshawar after recording of evidence and considering the data available on record ,and the complaint to this Tribunal vide order, dated 28-3-1998, for final adjudication.
5. That when the case came for hearing on 19-9-1998 both the parties wanted to produce certain documents which were returned to them and the learned Chairman of the Tribunal empowered one of the Member (Muhammad Alam) to record evidence of the .Parties in this case, which was duly recorded.
6. During the course of proceedings the respondent submitted an application under section 476, C.P.C. For taking suitable action against the complainant, the complainant submitted replication to this application on 0-1-2001. Arguments have been heard and record perused. Mr. Akhtar Naveed, Deputy Advocate-General mainly relied on the statement of P.Ws.1 and 2 District Education Officer and contended that as the respondent was in active service of the Government of N.-W.F.P.
Secured the Law Degree without the prior permission from the concerned Department and thus the attachment of the respondent to the Legal profession will be a conduct violative of the provisions of the Legal Practitioners and. Bar Councils Act, 1973 and the Rules framed thereunder and thus the respondent is guilty of professional misconduct.
7. Mr. Fazal Elahi Khan learned counsel for the complainant submitted that once it is proved that a person is in active service of the Government, he cannot practice the profession of Law and any act violative of the provisions of the cannons and ethics prescribed for the Advocates under the Legal Practitioners and Bar Councils Rules, 1976, will be an act, which will amount to professional misconduct. On the other hand Mr. Amjad Ali, Advocate counsel for the respondent vehemently contended that respondent has secured proper permission from the Education Department and has secured the requisite education i,e, B.A. And LL.B. Degree under that permission, so it was submitted that no professional misconduct has been committed by the respondent and the complaint is liable to be dismissed.
8. We have given our anxious consideration to the submissions of the learned counsel for the parties under their valued assistance and have perused the record of the case carefully.
9. Abdul Jabar Khan, Secretary, N.W.-F.P. Bar Council has been examined as P. W.1 and he has produced two intimation forms submitted by the respondent, copies of which are Exh.P.W.1/1 and Exh.P.W.1/2, these are dated 12-7-1994 and 10-8-1998 respectively, the first intimation form has been signed by Muhammad Sher Khan, Advocate, Swabi and the second one by Muhammad Sarwar Khan, Advocate, Swabi. After the submission of these forms the respondent never submitted the final documents for enrolment as an Advocate and that is why he has not been entered as an Advocate on the roll of N.-W.F.P. Bar Council, Peshawar.
10. It is an admitted fact that the respondent Istikhar Ali remained in the active service of the Education Department of the Government of N.-W.F.P. And obtained salary as is evident from the acquaintance role duly provided by the P.W.2 and has been exhibited as Exh.P.W.2/2 and during this period he started apprenticeship with Muhammad Sher Khan, Advocate. Furthermore, P.W.3 Mr. Habibullah, District Education Officer (Male) Primary, Swabi has confirmed that the respondent was removed from service vide termination order, dated 13-6-1998 copy Exh.P.W.2/3 in spite of this termination order he has never applied to the N.-W.F.P., Bar Council to be enrolled as an Advocate of the subordinate Courts.
11. The jurisdiction of the N.-W.F.P. Bar Council Tribunal has been conferred by section 41 of the Legal Practitioners and Bar Councils Act, 1973 and the rules framed therein, under this section the N.- W.F.P. Bar Council Tribunal can take action against a person who is enrolled as an Advocate and in Chapter I, section 2(a) an Advocate, means a person who is entered in any roll maintained by the Bar Council. In the present case the name of the respondent does not appear on any roll of the Bar Council, so the. N.-W.F.P. Bar Council Tribunal has got no jurisdiction to entertain the present complaint regarding the allegations that the respondent has drawn salary from the Education Department, the Education Department can persue the legal remedy available under the law.
12. In view of the above narration of facts, we have come to the conclusion, that the N.-W.F.P., Bar Council Tribunal has got no jurisdiction to entertain the present complaint. Consequently the complaint is returned to the complainant for presentation of the same before the proper forum.
The office is directed to return the original complaint to the complainant and a copy kept for record, with no orders as to costs.