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S. 13 (1) (2)‑Proceed ings before Tribunal‑Not governed by Civil Procedure Code (V of 1908)‑Complaint of professional misconduct against legal practitioner preferred by Additional District and Sessions Judge Proceedings before Tribunal not to be terminated for default of appearance of complainant‑Tribunal 'entitled to exhaust coercive processes for attendance of witness under Civil Procedure Code (V of 1908)‑Complaint of professional misconduct against Advo cate is of public character.

Neither in section 13 (1) (2), Bar Councils Act, 1908, nor in any other is it said that proceedings before the Tribunal shall be governed by procedure applicable to civil suits.

Where the Additional District and Sessions Judge had made a complaint of professional misconduct against a legal practitioner, and the Judge had not appeared before the Tribunal in answer to two letters sent to him by the Tribunal who, consequently, terminated the proceedings on the counsel for prosecution submitting that he was not desirous of any further adjournment for production of evidence and that he had no submissions to make because he had no instructions from the complainant:

Held, that while the attitude of the complainant in not caring to appear before the Tribunal could not be approved there was no good ground why the prosecutor should have allowed the case to go by default.

The omission of the complainant to appear before the Bar Council Tribunal was probably not justified but it should not have been taken by the Tribunal to be a valid ground for recommending the termination of proceedings against the Advo cate. The Tribunal did not appear to have been aware that by virtue of the powers given to them by section 13 of the Bat Councils Act, 1926, the presence of the complainant before the Tribunal could be enforced by issue of coercive process as if the Tribunal were a Civil Court and. the complainant had, in spite of service of summons on him, failed to appear without sufficient cause. If the Tribunal thought it was necessary to use coercive process for compelling the complainant to appear as a witness before them they should resort to that procedure.

When a complaint of professional misconduct is made against a legal practitioner, the matter becomes one of a public character and cannot be deemed to be merely the concern of the Advocate and the person who had made the complaint.

[Case sent back to Bar Council.]

Mazharul Haq for Petitioner.

S. H. Qadri for Respondent.

Date of hearing : 1^st April 1960.

In April 1956, Mr. M. M. Aslam Khan the then Additional District and Sessions Judge, Montgomery sent a complaint to this Court against Mr. Muhammad Shafiq Advocate, and after consideration in this Court the matter was referred to the Bar Council for West Pakistan in the end o: 1958, for an inquiry under the Bar Councils Act, 1926, and Tribunal consisting of a President and two members was nominates by my Lord the Chief Justice. This Tribunal has submitted report on the 29th of November 1959, that they feel that they have no material whatsoever on which they can proceed against Mr. Muhammad Shafiq, Advocate. The order passed by the Tribunal reads as follows :‑

"Notice was sent to Mr. M. M. Aslam Khan in terms of this order passed by this Tribunal on the 25th of October 1959 requiring him to appear before this Tribunal as his own witness on the 29th November 1959, at 10 a.m., that is, today. He ha: failed to turn up and in the meanwhile two letters sent by him to the Registrar of the High Court have been forwarded to this Tribunal. Counsel for the prosecutor says that he is no desirous of any further adjournment for purposes of production of evidence and does not wish to make any submission because he says he has no instructions from Mr. Aslam Khan.

In the circumstances of the case we feel that we have no material whatsoever on which we can proceed against the respondent. We, therefore, return the complaint to the High Court with the above remarks."

2. It will be noticed that the main reason for sending the above report was that the counsel who appeared for the prosecutor was not desirous of any further adjournment being given for producing evidence. The record shows that no evidence was produced before the Tribunal and as Mr. M. M. Aslam Khan, who had made the complaint, did not personally prosecute as he should not have done‑the prosecu tion of the complaint was entrusted to the Bar Council who appointed Mr. Sami Pal, Advocate, to conduct the prosecution. The record further shows that two letters sent by the Tribunal to Mr. M. M. Aslam Khan to appear before them did not elicit l. any satisfactory reply. We are not approving of the attitude of" Mr. M. M. Aslam Khan but can see no good ground why the prosecutor should have allowed the case to go for default.

3. It appears to us that the Bar Council Tribunal treated the matter as if it were a proceeding of a civil nature between Mr. M. M. Aslam Khan and Mr. Muhammad Shafiq, and because Mr. M. M. Aslam Khan would not care to appear they considered it proper to report to this Court that there was no material whatsoever on which the Tribunal could proceed against Mr. Muhammad Shafiq, Mr. Shamim Husain Qadri, who appeared before us for Mr. Muhammad Shafiq, took up the position that the proceedings before the Tribunal were to be governed by the same principle as civil proceedings. In support of this contention of his, Mr. Qadri relied on subsection (1) of section 13 of the Bar Councils Act wherein it was said that a Bar Council Tribu nal set up under the Bar Councils Act shall have the same powers as are vested in a Court under the Code of Civil Procedure, 1908, in respect of enforcing the attendance of any person and examin ing him on oath, compelling the production of documents, and issuing commission for the examination of witnesses. The learned counsel relied on subsection (2) of that section as well, wherein it is said that every inquiry before the Bar Council shall be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code and a Tribunal shall be deemed to be a Civil Court for the purposes of sections 480, 482 and 485 of the Code of Criminal Procedure, 1898, Mr. Qadri argued that the provisions mentioned above allowed the Tribunal to exercise certain powers of Civil Court and it should be presumed that proceedings before the Tribunal were governed by the Code of Civil Procedure in all respects. This argument has no force because neither in the provisions of law relied upon by Mr. Qadri nor in any other is it said that proceedings before the Tribunal shall be governed by procedure applicable to civil suits.

4. The omission of Mr. Aslam to appear before the Bar Council Tribunal was probably not justified but it should not have been taken by the Tribunal to be a valid ground for recommending the termination of proceedings against the Advocate. Tile Tribunal dyes not appear to have been aware that by virtue of the powers given to them by section 13 of the Bar Councils Act, 1926, the presence of Mr. Aslam before the Tribunal could be enforced by issue of coercive process as if the Tribunal were a Civil Court and Mr. Aslam had, in spite of service of summons on him, failed to appear without sufficient cause. If the Tribunal, thinks it is necessary to use coercive process for compelling Mr. Aslam to appear as a witness before them they should resort to that procedure and as the civil Court to whom the process is sent under section 13 of the Bar Councils Act is bound to execute it, we do not see why the enforcing of attendance of Mr. Aslam before the Tribunal should be considered such a difficult thing as to make it necessary for the prosecutor to say that he would prefer to let the case go as one of no evidence.

5. When a complaint of professional misconduct is made against a legal practitioner, the matter becomes one of a public character and cannot be deemed to be merely the concern of the Advocate and the person who had made the complaint. The matter was entrusted by this Court to the Bar Council so that this Court should have the views of the Bar Council before taking the action that may be considered appropriate in the circumstances of the case and we want to make it clear that reports of the type that has been made in the present case will not meet with the approval of this Court.

6. We are not unaware of the fact that the matter is rather old and Mr. Muhammad Shafiq, Advocate, has had to undergo inconvenience and expense in appearing before the Bar Council Tribunal and having his witnesses ready to be produced, but these facts cannot persuade us to have the complaint made against the Advocate being held to be without foundation. We are further of the view that if the Advocate is free of blame as he himself and his counsel Mr. Qadri represented him before us to be, it would be in the interest of the Advocate to have the matter disposed of on‑merits rather than to be filed for the reason that the only person who can support the case against him has not cared to attend before the Bar Council' Tribunal. We send the case back to the Bar Council and trust that the remarks made by us above will be paid heed to and if necessary the powers to issue coercive process against a witness, who is evading appearance before the Council, will be exercised.

A.H. Case sent back.

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