RAZIA BEGUM Versus MUHAMMAD ISHAQ, ADVOCATE

ORDER

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 Muhammad 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:‑‑

(i) The respondent charged a sum of Rs. 10,000 for arranging the marriage of her son Mobeen Ahmad in his own Flat A20, 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 Ahmed.

(ii) 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.

(iii) The respondent was not conducting the case of Mobin Ahmed properly and he according to the knowledge and belief of the complainant had taken "a tall sum of money from the brother of Mahin Siddiqui, to seek a divorce of Mahin Siddiqui on Khula".

(iv) 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 Muhammad 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 customary that 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 Muhammad 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, obnoxiously/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 (grandfather of Mobin Ahmad), he allowed the marriage to be solemnized at his flat. He denied having 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 party to all the civil litigation going on and it was on his statement that the Court had been passing the order dissolving the marriage and making the restitution case infructuous. He admitted having received Rs. 10,000 as part fee for conducting the case under the Hudood Ordinance but nothing more. He had conducted the cases properly and that when the Court had asked him to dissociate from the case, Mobin Ahmed, the son of the complainant, had executed the power of attorney in favour of Aslam Rana Advocate, who made appearance on his behalf.

4. The complainant Mst. Razia Begum and her father Ahmad Din appeared as witnesses in the case. Sardar Muhammad Ishaq, respondent, appeared as his own witness. They produced certain documents in support of their claim.

5. The fact that the respondent advised, arranged and permitted the use of his residential premises for performance of the Nikah by Mobin Ahmad with Mst. Mahin Siddiqui is established from the statement of respondent himself. He had also advised spouses, both of whom were adults, that they should report the fact of marriage at the Police Station which had been done, and also not reside for some time, as husband and wife, which advice too was heeded for a time but not long.

6. As regards the charging of the fee for the performance of the Nikah, there are no receipts held for it by the complainant. In view of the ill‑will that he developed previous to the lodging of the complaint it will not be safe to rely on the mere statement of the complainant and her father with regard to its payment. Unfortunately, Mobin Ahmed, the son of the complainant, who could say something in the matter positively because he was the concerned person who had been signing the documents and was directly involved in the proceedings was not available at the hearing. We will, therefore, give, in respect of charging of fee for getting marriage solemnized at his residence, the benefit of doubt, to the respondent.

7. One fact, however, emerges with great clarity from the record and it is that after having arranged and supervised the Nikah in the sense having permitted it to be held at his residence and to be associated with it, the respondent should not have appeared as a counsel on behalf of Mobin Ahmad in the case under the Hudood Ordinance registered against him. He associated himself with the case at a stage when the statement of Mahin Siddiqui was recorded by the Magistrate Ist Class on 5‑3‑1985. His withdrawal from the proceedings has been recorded by the Additional Session Judge (Hudood Court) Karachi East, in the following words on 25‑8‑1988:‑‑

"I withdraw my Vakalatnama as the Prosecution had cited me as prosecution witness, as the same was not in my knowledge and moreover I was the advocate for the accused from the very beginning and had cross‑examined the prosecution on 6‑3‑1985 before the submission of final challan and the same was fully known and in the knowledge of the I. O. of the case."

8. The conflict of interest as a witness in the case should have been clear to him from the very beginning and he should not have charged the fee or appeared on behalf of Mobin Ahmed accused as a counsel. To this extent the respondent has been not careful enough and has committed professional misconduct in terms of Rule 145 of the Legal Practitioners and Bar Councils Rules, 1976 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 of his having been won over, remaining unsubstantiated, in the way the cases cropped up and the matters proceeded, it cannot be said that the respondent deliberately 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 of Rs. 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 witness 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 the complainant, 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.

M.BA./4/T.P.B.C Order accordingly.