Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: The Registrar, Islamabad High Court, Islamabad VS Respondent: Naseer Ahmed Kayani, JUDGMENT
Court Name: Islamabad High Court Judge(s): Athar Minallah, Aamer Farooq, Miangul Hassan Aurangzeb Title:The Registrar, Islamabad High Court, Islamabad vs Naseer Ahmed Kayani,
JUDGMENT
Reported As: PLD 2021 Islamabad 203 Result: N/A Judgment JUDGMENT AAMER FAROOQ J.---This judgment shall decide instant complaint as well as complaints mentioned in the Schedule attached herewith, as common questions are involved. 2. February 8th, 2021 shall always be remembered as a 'Black Day' in the judicial history of Pakistan; on the said date, a considerable number of lawyers left the vicinity of F-8 Katchery , Islamabad in the early working hours and stormed the High Court building at about 10:30 a.m.; they pelted stones and hurled plants-pots at the Chief Justice Block and subsequently broke in and forced the Chief Justice and subsequently other Judges in the former's Chambers in state of being captive; the captivity continued for almost the entire working day and ended, after law enforcement agencies, were called in. Subsequent to the `event', the Registrar , Islamabad High Court, based on CCTV footages and other information received from eye-witnesses, lodged complaints before this Court naming a number of lawyers involved in the incident and citing the relevant law in seeking approval for further action under sections 41 and 54 of the Legal Practitioners and Bar Councils Act, 1973 (the Act). This Court issued notices to all the lawyers involved seeking show cause and providing opportunity of hearing before suspension of licenses. Other complaints were filed on the same allegations and also about similar incidents in F-8 Katchehry , Islamabad, which also were numbered and find mention in the Schedule attached herewith and similar treatment was given to the said complaints by issuance of notices. The licenses of the respondents/advocates, named in the complaints were suspended. 3. Mr. Muhammad Shoaib Shaheen, Advocate, appearing on behalf of some of the lawyers/respondents, inter alias contended that no action now is required under section 54 of the Act inasmuch as 90-days period has lapsed and suspension period has already expired, hence seeking further disciplinary action, would be an exercise in futility .
---
## Page 2
4. Mr. Mushtaq Hussain, Advocate, appearing for other lawyers/ respondents, inter alia contended that reply has been filed by number of lawyers and in some of the cases same has not been done inasmuch as they were unable to respond to the allegations qua their role in the matter . 5. Mr. Sher Afzal Khan, Advocate, appearing for one of the respondents, also contended that affidavit has been filed, wherein it is categorically stated that on the day in question, his client was not near the vicinity of Islamabad High Court. 6. Mr. Riasat Ali Azad, respondent in Com plaint No.5-2021, appearing in person, also submitted that he was in the Court of Hon'ble Chief Justice and left after the proceedings and hence is not involved in the incident in any manner . 7. The other learned counsel, present in the Court, supported the contentions of Mr. Muhammad Shoaib Shaheen, Advocate Supreme Court and also denied their involvement in the matter . 8. Arguments advanced by learned couns el for the parties have been heard and their contentions have been given due consideration. 9. Legal profession is one of the oldest and noblest profession; this fact bears special significance for the people of Pakistan in general and legal fraternity in Pakistan especially due to the fact that Founder of this great Country Mr. Muhammad Ali Jinnah was a practicing lawyer . Due to the nature of this professi on and its illustrious history and significance in keeping social order and maintaining rule of law in any civilized A society , legal fraternity is considered as intelligencia , hence high moral and professional conduct is expected of it. Since independence, role of legal community in maintaining rule of law and upholding the sanctity of Constitution of Islamic Republic of Pakistan as well as advocating for the rights of suppressed, is commendable. No one can forget the role of the lawyers along with civil society in the recent past for the restoration of the judiciary after the ouster of the then Chief Justice of Pakistan and other Judges. Having such glorious achievements as feathers in the cap and the precedents of upholding the rule of law and fundamental rights of the citizens of Pakistan, lawyers are expected to stand apart in their conduct from the others. Unfortunately , few errant in the profession bring bad name to the community in general; when the acts like 8th February , 2021 are committed; the past achievements become tainted and the trust and confidence of the public in the system of dispensation of justice is eroded inasmuch as those, who are the champions in maintaining rule of law, when are involved in breaking the same cannot be expected to uphold it 10. Like other professions, the legal fraternity also has a system of regulating the profession and for the said purposes institutes of Bar Councils have been created. In this behalf, the system as it operates in Pakistan, is provided in the Act for the Advocates who are enrolled to have audience before the apex Court of the country namely Supreme Court of Pakistan, are regulated by Pakistan Bar Council and the others, who are enrolled to appear before the High Courts and/or other subordinate courts and tribunals, are governed by provincial Bar Councils including Islamabad Bar Council for Islamabad Capital Territory . The legislature, reposing confidence in the regulator , provided system of self-accountability hence any advocate, either of the Supreme Court of Pakistan or a High Court, is licensed by the Bar Councils as mentioned above and in case of any violation of the Code of Conduct or the rules and regulations made under the Act, is proceeded under the system provided in the law. Section 41 of the Act provides for punishment of advocate for misconduct. For ease of convenience, relevant provision is reproduced below:- 41. Punishment of advocates for misconduct.-(1) An advocate may, in the manner hereinafter provided, be reprimanded, suspended, removed from practice or be made to pay such amount of compensation, fine or penalty as may be ordered if he is found guilty of professional or other misconduct. (2) A complaint that an advocate has been guilty of misconduct may be made by any Court or person- (a) in the case of an advocate of the Supreme Court to the Pakistan Bar Council; and (b) in any other case, to the Provincial Bar Council. (3) Every complaint against an advocate made under sub-section (2), except where the complaint has been made by a Court, shall be accompanied by such fee as may be prescribed by the Pakistan Bar Council from time to time. (4) Upon receipt of a complaint under subsection (2) against any advocate, the disciplinary committee of the Bar Council may, unless it summarily rejects the complaint, after making such inquiry and giving the parties such
---
## Page 3
opportunity of being heard as it may cons ider necessary , either reject the complaint or refer the same to a Tribunal for decision; Provided that the Disciplinary Committee shall not summarily reject a complaint made by the Supreme Court or a High Court; (4A) If a Bar Council has reason to believe that an advocate has been guilty of professional or other misconduct it may of its own motion refer the case to its disciplinary committee. (5) Any person whose complaint is rejected by the disciplinary committee under subsection (4) may within thirty days of the day on which the order of the committee is communicated to him, prefer an appeal to the Tribunal, whose decision in such appeal shall be final. 11. Along with the referred provision, section 54 of. the Act, is also relevant, which gives power to the Hon'ble Supreme Court of Pakistan and a High Court to suspend the license of advocates from practice while remitting the complaint against an Advocate. The said section is also reproduced below:- 54. Power of Supreme Court and High Court to suspend advocates from practice.-(1) The Supreme Court or a High Court may, while making a complaint under subsection (2) of section 41 against an advocate, make an order for the suspension of the advocate from practice for a period of three months if, after hearing such advocate, the Court is of the opinion that he has committed an act of grave indiscipline in the view of the Court or grave professional misconduct in relation to any proceeding before it, and his immediate suspension is in relation to any proceeding before it, and his immediate suspension is expedient or necessary in the interest of administration of justice. (2) On a complaint made to it against an advocate by a Court subordinate to it, the High Court may:-- (a) make an order under subsection (1) in respect of such advocate after hearing him, it is of the opinion that he has committed grave professional or other misconduct in relation to any proceeding before such subordinate Court, and his immediate suspension, pending the proceedings before the Bar Council, is expedient or necessary in the public interest and forward the complain t to the Provincial Bar Council or Islamabad Bar Council for action in accordance with section 41; (b) without making any order under subsection (1), forward the complaint to the Provincial Bar Council for action in accordance with section 41; or (c) direct that no further action need be taken in respect of the complaint". 12. The bare reading of the two provisio ns shows that while proceeding against an advocate on the ground of misconduct, the Bar Council may reprim and, suspend remove from practice or be made to pay such amount of compensation, fine or penalty if found guilty of professional or other misconduct. In this behalf, under subsection (2) of section 41 ibid, a complaint against an advocate can be made, either by any Court or a person and as noted hereinabove, in case of advocate of the Supreme. Court, to the Pakistan Bar Council and in other case, to the Provincial Bar Councils including Islamabad Bar Council, which is the youngest of all the Bar Councils. Even- otherwise, under subsection (4A) of section 41 of the Act, if Bar Councils have reasons to believe that an advocate is guilty of professional. or other misconduct, it may, on its own motion, refer the case to its Disciplinary Committee . The Disciplinary Committee of the Bar Councils, unless it summarily rejects the complaint, may after making inquiries and after granting opportunity of hearing to the parties, either reject the complaint or refer the same to a Tribunal however , if complaint is made by the 'Supreme Court or a High Court, the same shall not be rejected summarily . 13. Under section 54 ibid, the Supreme Court or any High Court, while referring the complaint to the Bar Council and after providing opportunity of hearing to the advocate(s) concerned, if is of the opinion that he/they have committed the act of grave indiscipline or grave professional misconduct, suspend the license if immediate suspension of license is expedient in the facts and circumstances. 14. Under sections 55 and 56, Pakistan Bar Council as well as provincial Bar Councils has the power to make rules. In this behalf, Pakistan Legal Practitioners and Bar Councils Rules, 1976 were promulgated; Chapter X of the same deals with the disciplinary proceedings against the advocates. It is worthwhile to observe that Pakistan Bar Council also adopted the canons of professional conduct and etiquette. Since the referred canons lucidly and
---
## Page 4
categorically lay out what is expected of an advocate, hence it is appropriate to reproduce the same which are as follows:- CANONS OF PROFESSIONAL CONDUCT AND ETIQUETTE Whereas the Rule of law is an essential feature of a civilized society and a pre-condition for realizing the ideal of justice. And whereas such a society affords to all citizens the equal protection of law and thereby secures to them the enjoyment of their lives, property and honour; And whereas an indispensable condition of such protection of the rights of citizens is the existence in society of a community of Advocates, men learned in the law and respected as models of integrity imbued with the spirit of public service and dedicated to the task of upholding the rule of law and defending all times, without fear or favour , the rights of citizen. And whereas by their efforts Advocates are expected to contribute significantly towards the creation and maintenance of conditions in which a government established by law can function fruitfully so as to assure the realization of political, economic and social justice by all citizens: And whereas in order effectively to discharge these high duties Advocates must conform to certain norms of correct conduct in their relations with members of the profession, their clients, with the Courts and the members of the public generally; And whereas the Pakistan Bar Council has formulated such norms of correct conduct into a set of Canons of Professional Conduct and Etiquette. Now the Pakistan Bar Council does hereby approve and adopt the Canons of Professional Conduct and Etiquette, set out hereunder and urges all Advocates to conform to these Canons in their conduct with regard to the members of the profession, their clients, the Court and the public generally . CHAPTER I CONDUCT WITH REGARD T O OTHER ADVOCA TES (1) It is the duty of every Advocate to uphold at all times the dignity and high standing of his profession, as well as his own dignity and high standing as a member of it (2) An advocate shall not solicit professional employment by advertisement or by any other means. This clause shall not be construed to prohibit the publication or use or ordinary professional cards, name plates or conventional listings in directories, so long as the information contained therein is limited to professional and academic qualifications, and public offices currently held, and does not contain any matter which savours of personal advertisement. (3) An advocate shall not employ another person to solicit or obtain or remunerate another for soliciting or obtaining professional employment for him; nor shall be share with an unlicensed person compensation arising out of or incidental to professional employment, nor shall he aid or abet an unlicensed person to practise law or to receive compensation therefore; nor shall he knowingly accept professional employment offered to him as a result of or incident to the activities of an unlicensed person. (4) An advocate shall not communicate with a party represented -by an advocate upon a subject of controversy in the absence and without the consent of such advocate. (5) An advocate shall not, in the absence of the opposing counsel, communicate with or argue before a judge or judicial officer except in open Court upon the merits of a contested matter pendi ng before such judge or judicial officer; nor shall he, without furnishing opposing advocate with a copy thereof, address a written communication to a judge or judicial officer concerning the merits of a contested matter pending before such judge or judicial officer . This rule shall not apply to ex-parte matters or in respect of matters not sub-judicie before the judge or judicial officer concerned. (6) A client's proffer of assistance of addit ional advocates should not be regarded as absence of want of confidence but the matter should be left to the determination of the client. An advocate should decline association as a colleague unless the dues of the advocate first retained are paid.
---
## Page 5
(7) Clients, not advocates, are the litigants. Whatever may be the ill feeling existing between clients, it should not be allowed to influence advocates in their conduct and demeanour towards death other or toward the parties in the case. All personal clashes between advocates should be scrupulously avoided. In the trial of a cause it is indecent to allude to the personal history or the personal peculiarities and ideosyacraises of advocates appearing on the other side. Personal colloquies between advocates, which cause delay and promote unseemly wrangling, should be carefully avoided. (8) No division of fees with any person for legal services is proper , except with another advocate based upon the principle of division of work as expressed in the agreement between the advocates. (9) Subject to the precedence of the Attor ney-General and the Advocates-General, as established by constitutional usage and practise, it is the duty of advocate to maintain and uphold the order of precedence in accordance with the roll of advocates maintained by the Bar Council. (10) Junior and younger members should always be respectful to senior and older members who also are expected to be not only courteous but also helpful to their junior and younger brethren at the Bar . (11) Where more than one advocates are engaged on any side it is the right of the senior member to lead the case and the junior members are to assist him. CHAPTER II CONDUCT WITH REGARD T O CLIENTS (1) An Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case. (2) An Advocate shall not accept employment adverse to a client or former client, relating to a matter in reference to which he has obtained confidential inform ation by reason of or in the course of his employment by such client or former client provided that an advocate, who has not been formally engaged by a person and accepted a retainer nor received any fees for such engagement is not precluded from accepting employment adverse to the interest of such person. (3) An advocate shall not accept professional employment without first disclosing his relation, if any, with the adverse party , and ills interest, if any in the subject matter of such employment. (4) An advocate shall not represent conflicting interests. (5) An advocate shall not himself or in benami purchase any property at a probate, foreclosure or judicial sale in an auction or proceeding in which such. advocate appears for a party , nor shall he accept the whole or part of the property , in respect of which he had been 'engaged to conduct the case, in lieu of his remuneration nor as reward or bounty . (6) An advocate shall not commingle the property of client with his own, and shall promptly report to the client the receipt by him or any money and other property belonging to such client. (7) An advocate shall not advise the commencement of prosecution or defence of case, unless he has been consulted in reference thereto, except when his relation to a party or to the subje ct matter is such as to make it proper for him to do so. (8) An advocate in his professional capacity shall not advise the violation of any law. This rule shall not apply to advice given in good faith, that a law is invalid. (9) It is the right of an advocate to undertake the defence of a person accused of a crime, regardless of his personal opinion as distinguished from knowledge as to the guilt of the accused; otherwise innocent persons victims merely of suspicious circumstances might be denied proper defence. Havin g undertaken such defence, the advocate is bound by all fair and honourable means, to present every defence that the law of the land permits, to the end that no person may be deprived of life or liberty , except by the process of law . (10) In fixing fees, advocates should avoid charges, which over-estimate their advice and services as well as those which undervalue them. A client's ability to pay cannot justify charge in excess of the value of the service though his poverty may require a less charge, or even none at all. The reasonable reques ts of a brother advocate, should also receive special and kind consideration. in respect of widows and orphans of an advocate, all advocates shall assist them free of charge.
---
## Page 6
In determining the amount of fees if it proper to consider the time and labour required the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case; whether the acceptance of employment in the particular case will preclude the Advocate's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable exception that otherwise he would be employed, or will involve the loss of other business while employed in the particular case; the customary charges of the Bar for similar service; the amount involved in the controversy and the benefits resulting to the client from service; the contingency or the certainty of the compensation, and the character of the employment; whether casual or for an established and constant client. Of these considerations, none in itself is the controlling factor . They are mere guides in ascertaining the real value of the service. In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money making trade. (11) Controversies with clients concerning compensation are to be avoided by the advocate so far as shall be compatible with his self-respect and with his right to receive reasonable recompense for his services. Any law suits with clients should be resorted to only to prevent injustice, imposition or fraud. (12) Nothing operates more certainly to creche or foster popular prejudice against advocates as a class and, to deprive the profession of that full measures of public esteem and confidence which belongs to the proper discharge of its duties than does the false claims, often set up by the unscrupulous in defence or questionable transactions, that it is the duty of the advocate to do whatever may enable him to succeed in wining his client's cause. It is improper for an advocate to assert in argument his personal belief in his client's innocence or in the justice of his cause. His professional duty is strictly limited to making submissions at the Bar consistently with the interest of his client. The advocate owes entire devotion to the interests of the client, warm zeal in the maintenance and defence of his rights and the exertion of his utmost learning and ability to the end that nothing be taken or be withheld from him save by rules of law legally applied. No fear of judicial disfavour or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defence that is authorised by the law, and he may except his advocate to assert every such remedy or defence. But it is steadfastly to be borne in mind that the great trust of the advocate is to be discharged within and not without the bounds of the law. The office of an advocate does not permit, much less does it demand of him for any client, the violation of any law or any manner of fraud or chicanery . In doing his professional duty to his client he must obey the voice of his own conscience and not that of his client. (13) When an advocate is a witness for his client except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the cases to other advocates. Except when essential to the ends of justice, an advocate should avoid testifying in Court on behalf of his client. (14) In incidental matters, not effecting the merits of the cause in a trial, nor working substantial prejudice to the rights of the client, such as forcing the opposite advocate to trial when he is under affection or bereavement, forcing the trial on a particular day to the injury of the opposite advocate when no harm will result from a trial at a different time, agreeing to an extension of time for filling written statements, cross interrogatories and the like, the advocate must be allowed to judge himself. In such matters no client has a right to demand that his advocate shall be ungenerous or that he does anything therein repugnant to his own sense of honour and property . CHAPTER III DUTY TO THE COUR T (1) It is the duty of an advocate to maintain towards the Court a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance, judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamour . At the same time whenever there is proper ground for complaint against a judicial officer , it is the 'right and duty of an advocate to ventilate such grievances and seek redress thereof legally and to protest the complainant and person affected.
---
## Page 7
(2) An advocate shall not advise a perso n whose testimony could establish or tend to establish a material fact, to avoid service of process, or conceal himself or otherwise to…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.