' MUHAMMAD ALAM (MEMBER).---On 18-12-1999 Iftikhar Ahmad Khan complainant filed a complaint in the N.-W.F.P. Bar Council, Peshawar alleging therein that Abdul Raziq, Advocate who is attached to the legal profession and is practising as a lawyer in District Bar Association, Karak (Tehsil Takht Nusrati). It is further alleged that the younger brother of the respondent namely Muhammad Arif had lodged an F.I.R. No,2 dated 2-1-1996 under sections 506, 427, 148 and 149, P.P.C. At Police Station Takht Nusrati against the complainant, his brother and other relatives. It is further alleged that the name of Abdul Raziq, Advocate has been mentioned as eye-witness in the said F.I.R. And his statement was also recorded by the local Police under section 161, Cr.P.C. As an eye-witness of the occurrence. Later on, the accused of the said F.I.R. Were arrested and subsequently they were released on bail by Illaqa Magistrate Takht Nusrati, District Karak. Further, averments in the complaint are that on 21-1-1996 the respondent Abdul Raziq, Advocate in the capacity of a counsel, filed a bail cancellation application in the Court of Sessions Judge, Karak, which was registered as Bail Cancellation Application No,40 of 1996, in which the respondent acted as counsel for the prosecution in the Court of Sessions Judge Karak. So, it is alleged that on one side the respondent was the eye-witness of the occurrence and legally he could not move any application for cancellation of bail in the capacity of an Advocate and by doing so, the respondent has violated the cannons of conduct prescribed by law for the legal profession and has committed gross professional misconduct so strict legal action under the law was prayed for.
2. The Disciplinary Committee of the N.-W.F.P. Bar Council initiated proceedings against the respondent and the respondent submitted written statement denying the allegations contained in the complaint, but however, it was admitted that he had appeared as Court-witness in the trial of the case, as a witness for the prosecution, as the accused had moved an application in the Court and on the direction of the trial Court the respondent appeared as a Court witness. The respondent also admitted that his statement was recorded by the local police as witness under section 161, Cr.P.C. The complaint was termed to be the outcome of professional jealousy and malice.
3. The Disciplinary Committee after recording the evidence of the parties as they wished to adduce and taking into consideration the written arguments submitted by the parties and the data available on the record referred the case to this Tribunal for final adjudication vide reference dated 25-11-2000.
4. We have heard the complainant as well as S. Masoud Kausar, Advocate appearing for the respondent and Tariq Javed, Deputy Advocate-General appearing for the Government.
5. The complainant Muhammad Arif mainly relied on the F.I.R. No . 2 dated 2-1-1996 copy Exh. P. W.
1/1, site plan copy Exh. P.W. 1/2 complete challan copy Exh.P.W.1/3 and bail cancellation application copy Exh. P. W. 1/5 and on the strength of these documents, it was argued that as the respondent Abdul Raziq, Advocate was a witness in the said F.I.R. And also recorded his statement under section 161, Cr.P.C., legally could not act as an Advocate and was not competent to submit the bail cancellation application in the capacity of a counsel for the prosecution. It is submitted that as the respondent has acted in gross violation of the cannons of professional conduct prescribed for the Advocates by the Legal Practitioners and Bar Councils Act, 1973 and the Rules framed thereunder, has committed a gross professional misconduct, thus, entailing the punishment provided under section 41 of the Act (ibid). Reliance in this respect was placed on the case of Mst. Razia Begum v.
Sardar Muhammad Ishaq, Advocate reported in 1990 MLD 1441 and on Muharaj-Sita-Ram Pujori v.
Alim-ud-din reported in NLR 1982 UC page 601.
6. S. Masoud Kausar learned counsel appearing for the respondent submitted that the respondent has not violated any rule framed under the Legal Practitioners and Bar Councils Act, 1973 and has done nothing violative of the cannons of conduct prescribed for the Advocates, so it was prayed, that the complaint is liable to be dismissed.
7. Mr. Tariq Javed the learned Deputy Advocate-General appearing for the Government mainly relied on Rule 157 of the Legal Practitioners and Bar Councils Rules, .1976 and submitted that the respondent has violated the provisions contained in the rules (ibid) by acting in two capacity, one as a witness for the prosecution and the other as counsel for the prosecution. Elaborating his arguments, the learned Deputy Advocate-General submitted, that an Advocate cannot be a witness for his client, except in formal matters like attestation or custody of an instrument as provided by rule 157 (ibid) and any violation of this rule will amount to professional misconduct attracting the penal provisions contained in section 41 of the Act (ibid).
8. We have given our anxious consideration to the facts and legal position involved in this case and have gone minutely through the evidence and documents placed on the record by the parties. The admitted facts of the case are that in fact, an F.I.R. Was lodged by Muhammad Arif younger brother of the respondent Abdul Raziq, in Police Station Takht Nusrati, District Karak in which he narrated the occurrence in the following words: "That on 2-1-1996 at 15-00 hours I alongwith my brothers namely Abdul Raziq and M. Tariq were going to our field in order to look after the standing crops. When we reached near our fields, we saw that Muhammad Khurshid son of Naik Muhammad, Zulfiqar Ahmad son of Muhammad Khurshid, Iftikhar Ahmad, Sajjad Ahmad, Nisar Ahmad and Imtiaz Ahmad sons of Abdul Bahar residents of Chota Banda, Tehsil Takht Nusrati were present duly armed in the Kotha in their fields, and were demolishing the newly constructed Kotha; We asked them as to why they are demolishing our Kotha. On this, all the accused armed their guns on us, in order to criminally intimate us. As the complainant and his brothers were empty-handed so the accused demolished the Kotha alongwith walls and its roof which resulted in severe damage to the T-irons and other articles present there and the complainant charged all the accused for the commission of the offence."
9. On this the local police registered the case vide F.I.R. No,2 dated 2-1-1996 under sections 506/420/148/149 of Pakistan Penal Code and it was in this background that the accused were arrested and later on were released on bail. Bare perusal of the contents of the F.I.R. Would show that Muhammad Arif not only charged all the accused for criminally intimidating him but also his brothers Abdul Raziq and Muhammad Tariq being criminally intimidated by the accused. All the three brothers were the victims of the assault and all the accused charged were the assailants. So, the position of the respondent was also that of the complainant being the victim of the assault and he could move the bail cancellation application, even in his own name as the complainant of the occurrence.
10. The case-law cited by the complainant is distinguishable in the first case of Mst. Razia Begum v.
Sardar M. Ishaque, Advocate reported in 1990 MLD 1441. The respondent-Advocate was a witness of Nikah and later on when a Hadd case was registered against the spouse, the respondent appeared as witness in that case and later on conducted the case as an Advocate, in which his lordship Justice Sharif-ur-Rehman awarded the sentence of reprimand and imposed a costs of Rs,12,000 on the respondent-Advocate in the case of Muharaj Sita-Ram Pujori, reported in NLR 1982 UC page 601(c) an Advocate had appeared as witness for a party and later on at the stage of second appeal he accepted the brief on behalf of one of the parties, which case was the representation of conflicting interest, by the counsel, which was deprecated by his lordship Justice K.A. Ghani of the Karachi High Court.
11. There is yet another aspect of the case, that the respondent refrained to appear as witness for the prosecution and it was on the application of the defence counsel, that he was called as a Court-witness, which compelled the respondent to appear before the Court and surrender to its jurisdiction, which was not a voluntary appearance as witness for the prosecution. Furthermore, there is no evidence on the record, that after the statement of the respondent was recorded as Court-witness, he ever, appeared as a counsel in the case.
12.- The complainant has also submitted an application for initiating proceedings under section 193 of the Pakistan Penal Code for making false statement and evidence before the Disciplinary Committee. Perusal of the statement would show that contradictions in cross-examination of a witness will not attract the rigours of section 193, Pakistan Penal Code.
13. In view of the facts and circumstances narrated above, we hold that no case of professional misconduct has been made out against the respondent and the instant complaint is hereby dismissed, leaving the parties to bear their own costs.
Complaint dismissed.