Wednesday, 8 October 2014

Professional Misconduct Judgment

PLJ 1990 Tr.C (Misconduct) 101
[Tribunal of the Pakistan Bar Council]
Present: JUSTICE SHAF1UR REHMAN, CHAIRMAN AND RAJA HAQ NAWAZ KHAN,
MEMBER

Mst. RAZ1A BEGUM-Complainant
versus
Sardar MUHAMMAD ISHAQ, ADVOCATE-Respondent Disciplinary Complaint No. 27 of 1988, decided on 19-3-1990 Legal Practitioners and Bar Councils Act, 1973 (XXXV of 1973)--
—S. 41(4) read with Pakistan Legal Practitioners and Bar Councils Rules, 1976,Rule 145--Professional misconduct-Complaint of-Proof of-Punishment for-Fact that respondent advised, arranged and permitted use of his residentialpremises for performance of Nikah by Mobin Ahmad with Mst. MahinSiddiqui is established from statement of respondent himself—Respondent alsogave advise to spouces to report marriage at police station and not to live ashusband and wife for some time—No receipts about charging of fee forperformance of Nikah having been produced, benefit of doubt given torespondent-Conflict of interest as a witness should have been clear torespondent from very beginning and he should not have appeared as acounsel--Held: Only misconduct found established against respondent is ofhaving charged fee and engaged as counsel when he himself was witness inHudood case—Held further: Reprimand and payment of Rs. 12000/- as coststo complainant would be sufficient. [Pp.l04&105]A,B,C,D,&E

Date of hearing: 14-3-1990.
ORDER:
Justice Shafiur Rahman, Chairman.--The Disciplinary Committee of the Pakistan Bar Council has by an Order dated 24-6-1989 referred under section 41(4) of the Legal Practitioners and Bar Councils Act, 1973, a complaint filed by Mst. Razia Begum against Sardar Mohammad Ishaq, Advocate, making the allegations of professional misconduct against him.
2. In her complaint dated 4th of September 1988, addressed to the Secretary, Pakistan Bar Council, she made the following grievances:-
(/) The respondent charged a sum of Rs.10,000/- for arranging the marriage of her son Mobcen Ahmad in his own flat A 20, Suleman Terrace, Sir Suleman Shah Road, Karachi, with one Mst. Mahin Siddiqui, whose parents were not willing to give her hand in marriage; and in respect of this event a criminal case was got registered by Asad Ullah Siddiqui, brother of Mst. Mahin Siddiqui under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide F.I.R.No.44 of 1985, which came up for trial as a case No.300/85 before the Additional Sessions Judge East, Karachi, in which the respondent appeared as counsel of Mobin Ahmad.
(//') The respondent advised the son of the complainant to institute a case for restitution of conjugal rights for which he demanded separately a sum of Rs.5.000/- which was paid to him and case No.506/1985 was filed by him.
(///')   The respondent was not conducting the case of Mobin Ahmad properly and he according to the knowledge and belief of the complainant had taken "a tall sum of money form the brother of Mahin Siddiqui, to seek a divorce of Mahin Siddiqui on Khula".
(/v) The Court in which the criminal case was pending on coming to know that the marriage had taken place at the residence of the respondent and was arranged by him, disallowed him to conduct the case as his conduct of the case till then was illegal.
(v) On the improper advice of the respondent, Mobin Ahmed had to divorce Mahin Siddiqui.
She concluded her complaint in the following words:-
"Sardar Mohammad Ishaq, not only blackmailed my son, but also extracted tall sums of money, viz, Rs.10,000 for the marriage, Rs.5,000 for filing the case for the Restitution of Conjugal Rights and Rs.15,000 for the main case. He therefore extracted Rs.30,000. I cannot produce a receipt of Rs.15,000 from Sardar Muhammad Ishaq, as it is customarythat lawyers take all fees in advance and do not issue receipts. But luckily for me a receipt of Rs.15,000 issued to my father is attached, which will amply prove that Sardar Mohammad Ishaq could not have arranged the marriage of my son and filed the case for Restitution of Conjugal Rights, gratis.
Mr. Ahmad Din, my old father and I have suffered a period of over three years of agony, anguish and nerve-shattering worry, besides financial loss at the hands of Sardar Muhammad Ishaq. My son and I were not conversant with the legal procedure of the court. My son, fully relying on Sardar Muhammad Ishaq, acted exactly as directed by him.
Craving for justice at your capable hands, I most respectfully request you to kindly order the recovery of the amount of Rs.30,000 from Sardar Muhammad Ishaq and payment to me. Sardar Muhammad Ishaq, in the course of this case treated my old and retired father most shamelessly, abnoxiously/with utter disrespect, as I a woman could never run after him in the course of this case. His role, both legal and moral in keeping back the facts of this case and being hand-in-glove with the prosecution, is a subject to be dealt with by your honour, to save unfortunate women like me, who fall victim to such circumstances beyond their control."
3. The respondent in his reply to the complaint denied the allegations and alleged that one Mr. Rehmat Ansari A.P.P. who is inimical to him has been instrumental in prompting the complainant to institute the complaint. According to him he had been appearing in cases instituted against the complainant and her son. Her son, according to him, had particularly a criminal record and after making mention of the earlier engagements in criminal cases, he denied as a fact having charged any fee for arranging the marriage at his residence though he admitted that at the request of the father of the complainant (grand-father of Mobin Ahmed), he allowed the marriage to be solemnized at his flat. He deniedhaving established any contacts with the family of Mahin Siddiqui or to have been won over by them. On the contrary he stated that Mobin Ahmad himself was a had been not careful enough and has committed professional misconduct in terms of Rule 145 of the Legal Practitioners and Bar Councils Act, 1973, with regard to conduct with the clients.
9.          As regards the allegation that Asad Ullah Siddiqui, won over the respondent or that he paid him a substantial amount in order to aggravate the agony of involvement of the complainant's family, there is only an assertion to that effect, and even the father of the complainant who had been handling the matter has admitted that he had no proof of it.
10.    As regards the competence in handling the cases and advices tendered on various occasions, there could be bona-fide error of judgment. The allegation ofhis having been won over, remaining unsubstantiated, in the way the cases cropped up and the matters proceeded, it cannot be said that the respondentdeliberately mishandled the case or wrongly advised the complainant's son.
11.    On the facts proved, the only misconduct found established against the respondent is of his having charged the fee of Rs.10,000/- out of a total ofRs.15,000/- agreed upon and to have allowed himself to be engaged as a counsel in the case under the Hudood Ordinance and to have represented the accused for
some time in that case when he was himself a witness against the accused in that case as shown by the challan submitted in court.
12.    In the circumstances of the case, we would consider that a reprimand for the misconduct would be sufficient and a payment of costs of Rs.12,000/- to thecomplainant, Rs.10,000/- of which will be reimbursement of the fee, which should not have been charged at all. The reprimand shall be entered in the rolls of Advocates, against the name of the respondent. The Bar Councils, the Supreme Court and the parties be informed accordingly.
(MBC)
Order accordingly

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