P L D 2003 Lahore 739

Before Asif Saeed Khan Khosa, J

MANZOOR AHMED and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No. 117-Q of 2003, heard on 4th July, 2003

Criminal Procedure Code (V of 1898)---

----Ss. 345 & 561-A---Penal Code (XLV of 1860), Ss. 337-A(ii)/ 337-F(i)/34---
Compromise---Failure to effect the compromise during trial--Compromise arrived at
between the parties was not confined to the matter of bail only but the same pertained to
the entire case---Complainant as well as the injured person had undertaken to get the
petitioners acquitted from the Trial Court when that stage was to arrive---On such
compromise the accused persons had been admitted to pre-arrest bail-During the trial, the
complainant and injured person declined to effect the compromise and Trial Court
refused to acquit the accused persons on the basis of the compromise effected at the time
of bail---Validity---Compromise in a criminal case could not be allowed to be resiled
from if it had already been acted upon--Compromise arrived at between the parties at the
stage of bail still enured to the benefit of the accused persons and the complainant and
injured person could not be allowed to resile from the same---High Court in exercise of
jurisdiction under S.561-A, Cr.P.C. quashed the case and acquitted the accused on the
basis of compromise.

Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and 2 other 1998 SCMR 466;
Barish Ali and 2 others v. Chaudhry Mushtaq Ahmed, Additional Sessions Judge,
Depalpur, District Okara and 6 others 2002 YLR 1016; Mukhtar Ahmad and 3 others v.
The State 1999 PCr.LJ 1107; Syed Sabir Hussain Shah and another v. Syed Iftikhar
Hussain Shah and another 1995 MLD 563; Kumarasami Chetty v. Kuppusami Chetty and
others AIR 1919 -Mad. 879(2); Ram Richpal v. Mata Din and another AIR 1925 Lah.
159; Jhangtoo Barai and another v. Emperor AIR 1930 All. 409; Mt. Rmbai w/o
Bahadursingh v. Mst. Chandra Kumari Devi AIR 1940 Nag. 181; Godfrey Meeus v.
Simon Dular AIR 1950 Nag. 91 and Prithvi Bhagat and another v. Birju Sada AIR 1962
Pat. 316 ref.

Rana Ghulam Sarwar for Petitioners.

Ch. Jamil Ahmed Sandhu and Mehr Khalid Miraj with Respondent No.3 (in person).

Respondent No.2 (present in person).

Date of hearing: 4th July, 2003.

JUDGMENT

The necessary facts giving rise to the present petition filed under section 561-A, Cr.P.C.
are that the petitioners are accused persons in case F.I.R. No.202 registered at Police
Station Ganda Singhwala, District Kasur on 6-11-2000 for offences under sections
452/337-A(ii)/337-F(i)/34, P.P.C. Section 452, P.P.C. was deleted from the F.I.R. during
the investigation of this case. Respondent No.2 happens to be the complainant of the
above mentioned criminal case and respondent No.3 is the injured victim. The said
criminal case is presently pending adjudication before the learned Judicial Magistrate 1st
Class, Kasur and the stage of the trial is that a charge has already been framed against the
petitioners and the case is now fixed for recording of the prosecution evidence. An
application had been submitted by the petitioners before the learned trial Court seeking
their acquittal under section 249-A, Cr.P.C. but that application of the petitioners was
dismissed by the learned trial Court vide order dated 5-5-2003. Hence, the present
petition before this Court.

2. After hearing the learned counsel for the parties and going through the record it has
been noticed that the petitioners had been arrested in connection with the above
mentioned criminal case and they had submitted an application for post-arrest bail before
the learned trial Court. During the pendency of that application for bail the complainant
of this case as well as the injured victim, respondents Nos. 2 and 3 herein respectively,
had not only sworn affidavits but had also appeared before the learned trial Court on 16-
12-2002 maintaining that they had entered into a compromise with the petitioners, the
petitioners had been forgiven by them in the name of Almighty Allah, they had no
objection to grant of bail to the petitioners and they certified and verified the contents of
the affidavits submitted by them. The affidavits submitted by respondents Nos.2 and 3
before the learned trial Court, copies whereof have been appended with this petition as
Annexures B and C respectively, show that the compromise arrived at between the patties
was not confined or restricted to the matter of bail only but the same pertained to the
entire case and the complainant as well as the injured victim had undertaken to get the
petitioners acquitted from the learned trial Court when that stage was to arrive. It was in
these circumstances that the petitioners had been admitted to post-arrest bail by the
learned trial Court on 16-12-2002 while acting upon the said compromise entered into
between the parties. The law is now quite well-settled that a compromise in a criminal
case cannot be allowed to be resiled from if it has already beer acted upon reference in
this regard may, be made to the cases of Syed Iftikhar Hussain Shah v. Syed Sabir
Hussain Shah and 2 others 1998 SCMR 466; Barish Ali and 2 others v. Chaudhry
Mushtaq Ahmad, Additional Sessions Judge, Depalpur, District Okara and 6 others 2002
YLR 1016; Mukhtar Ahmad and 3 others v. The State 1999 PCr.LJ 1107; Syed Sabir
Hussain Shah and another v. Syed Iftikhar Hussain Shah and another 1995 MLD 563. It
may be added here that this legal principle is not of recent origin and this was always the
law in the Indian Sub-Continent. A reference in this regard may be made to the. cases of
Kumarasami Chetty v. Kuppusami Chetty and others AIR 1919 Mad. 879(2); Ram
Richpal v. Mata Din and another .AIR 1925 Lah. 159; Jhangtoo Barai and another v.
Emperor AIR 1930 All. 409; Mt. Rmbai w/o Bahadursingh v. Mst. Chandra Kumari Devi
AIR 1940 Nag. 181; Godfrey Meeus v. Simon Dular AIR 1950 Nag. 91 and Prithvi
Bhagat and another v. Birju Sada AIR 1962 Pat. 316.

3. For what has been observed above I have entertained no manner of doubt that the
compromise arrived at between the parties at the stage of the petitioners' bail still ensures
to the benefit of the petitioners and respondents Nos.2 and 3 cannot be allowed to resile
from the same. Both the offences allegedly committed by the petitioners are
compoundable. In this view of the matter this petition is allowed and the above
mentioned criminal case against the petitioners is quashed with the effect of the
petitioners' acquittal on the basis of a compromise.

M. H./M-2040/L Case quashed.

2002 Y L R 1016

[Lahore]

Before Rustam Ali Malik, J

BARISH ALI and 2 others---Petitioners

Versus

Chaudhry MUSHTAQ AHMAD, ADDITIONAL SESSIONS JUDGE, DEPALPUR,

DISTRICT OKARA and 6 others---Respondents

Criminal Revision No.147 of 2002, decided on 11th June, 2002.

Penal Code (XLV of 1860)---

----Ss.302/310---Criminal Procedure Code (V of 1898), S.345(2)---Compounding of

offence and waiving the right of Qisas--Concept---Compounding of offence at bail
stage---Effectiveness of such compromise during and after trial---Offence though could
be compounded by parties with permission of the Court before which any proceeding for
such an offence was pending, but concept of waiving right of Qisas or compounding the
offence was not restricted only to cases pending before Court---Provisions of waiving
right of Qisas or compounding of offence could be invoked at any time before execution
of sentence and Court was always competent to entertain and give effect to compromise
between the parties even after decision of case and would not be functus officio in
matters compromise---Compromise effected between parties even at bail stage would
remain valid, could be acted and could not be revoked by any of parties unilaterally when
main case would come up Court for trial---only which Court had to do was to satisfy
itself whether compromise had been actually effected between parties at bail stage.

Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah 1998 SCMR 466; Baz
Muhammad v. The State 2000 PCr.LJ 553; Syed Sabir Hussain Shah and another v. Syed
Iftikhar Hussain Shah 1995 MLD 563; Rana Awais and others v. S.H.O., Police Station
People's Colony, Faisalabad and others 2001 PCr. LJ 241; Muhammad Nazir alias Jeera v.
State PLD 2001 Lah. 212; Province of the Punjab through Secretary Health Department
v. Dr. S. Muhammad Zafar Bukhari PLD 1997 S.C 351 and Syed Alamdar Hussain Shah
v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121 ref.

Syed Shabbar Raza Rizvi for Petitioners.

Muhammad Hanif Khatana, Addl. A.-G for the State.

Date of hearing: 4th June, 2002.

JUDGMENT

This revision petition is directed against the order dated 7-2-2002 passed by the learned
Additional Sessions Judge, Depalpur whereby he had dismissed an application of the
petitioners filed under section 265-K, Cr.P.C.

2. The brief facts of the case are that an F.I.R. No.97/2002 was registered under sections
302/34, P.P.C. on 24-2-2001 in Police Station Saddar, Depalpur and wherein the
petitioners had been nominated as accused. According to the contents of the F.I.R., the
petitioners were alleged to have caused the death of Suleman, the father of Rustam Ali,
complainant. After the investigation the challan was submitted in the Court and the case
was pending in the Court of the learned Additional Sessions Judge, Depalpur. An
application under section 265-K, Cr.P.C. was filed on behalf of Barish Ali and Ghulam
Muhammad petitioners before the learned trial Court praying that they be acquitted in
this case as they were quite innocent in this case and. had effected a compromise with the
complainant party in the presence of `Punchayat' held at the Dera of Mian Nizam Tariq
Bodla and had made payment of Rs.1,50,000 to the complainant party and that 'the
complainant party had submitted its affidavits as well in the Court of the learned
Additional Sessions Judge (at the time of the hearing of the application for pre-arrest bail)
and that on account of the compromise the learned Additional Sessions Judge, Depalpur
had accepted the application for pre-arrest bail on 28-4-2001.

It was thus prayed by them that they be acquitted under section 265-K, Cr.P.C.

3. After hearing the arguments the learned trial Court dismissed the said application on
7-2-2002. Aggrieved of the said order the petitioners have filed this Revision Petition.

4. I have carefully heard the arguments. The learned counsel for the petitioners has
argued that the learned Additional Sessions Judge, Depalpur had failed to properly
appreciate the principle of law enunciated by the Honourable Supreme Court of Pakistan
and had also ignored the mandate of Article 189 of the Constitution and the principle of
law pronounced by the Honourable Supreme Court of Pakistan as reported in Syed
Iftikhar Hussain Shah v. Syed Sabir Hussain Shah (1998 S.C.M.R 466) and which is in
fact fully applicable in the instant case. He has argued that the learned Additional
Sessions Judge, 'Depalpur did not appreciate the provisions of section 345, Cr.P.C. and
that the compromise once effected between the parties is valid and cannot be revoke by
the parties unilaterally. He has argued that the learned Additional Sessions Judge has
over-looked and misread paras 2 and 3 of the bail granting order wherein it had been
clearly noted that the complainant and the legal heirs of the deceased had appeared before
the Court and supported the contents of their affidavits and further that the Court had
accepted the compromise after its satisfaction that the compromise had been voluntary in
nature. He has argued that the learned trial Court had wrongly dismissed the application
of the petitioner under section 265-A, Cr.P.C. and that in view of the fact that the matter
had been compromised between the parties and the offence had been compounded, the
petitioners were entitled to be acquitted.

5. The learned Additional A.G, has however, controverted the arguments of the learned
counsel, for the petitioners' and has argued that the learned Additional Sessions Judge,
Depalpur had passed a proper and legal order and that the cases falling under section
345(2), Cr.P.C can only be compounded when prosecution regarding which offence was
pending before the competent Court and any compromise was to be given any value
unless it was sanctioned by the Court as envisaged under section 345(2), Cr.P.C.

6. Section 345(2). Cr.P.C. provides the offences punishable under the sections of the
Penal Code specified in the first two columns of the table (mentioned in the said section)
with the permission of the Court before which any prosecution for such an offence is
pending, be compounded by the persons mentioned in the third column of that table.

7. It is a clear position that in fact no prosecution for the offence in question was pending
before the learned trial Court when the alleged compromise had been effected between
the parties and it is an admitted fact that by then challan had not been submitted in the
Court and the case at the stage of investigation. It is appreciated by this Court that the
learned counsel for the petitioner Syed Shabbar Raza Rizvi provided a lot of legal
assistance to the Court at the time of arguments on this revision petition. Besides citing
the relevant case-law, he placed reliance on a number, of authoritative books on law and
Islam and quoted at length from the same. During his arguments he referred to the case of
Baz Muhammad v. The State (2000 PCr.LJ. 553 (Federal Shariat Court); Syed Sabir
Hussain Shah and another v. Syed Iftikhar Hussain Shah (1995 MLD 563 (Karachi) Syed
Iftikhar Hussain Shah v. Syed Sabir Hussain Shah (1998 S C M R 466); Rana Awais and
others v. S. H. O. Police Station People's Colony Faisalabad and others (2001 PCr.LJ 241
(Lahore); Muhammad Nazir alias Jeera v. State (PLD 2001 Lah. 212); Province of the
Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD
1997 SC 351) and Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others
(PLD 1978 SC 121).

8. In the light of the authorities relied upon by the learned counsel for the' petitioners it is
clear that although an offence can be compounded by the parties with the permission of
the Court before which any prosecution for such an offence is pending, yet the concept of
waiving the right of Qisas or compounding the offence is not restricted only to the cases
pending before the Court, but these provisions can be invoked at any time before
execution of sentence and Court is always competent to; entertain and give effect to the
compromise between the parties even after decision of the case and would not be functus
officio in matters of compromise. The question now arises as to whether an offence can
be compounded even at bail stage and if so, whether a compromise arrived at (at bail
stage) can be given effect subsequently after the submission of challan (when the case
comes up before the Court for hearing). In the light of the authorities reported as 1995
MLD 563 (Karachi) and 1998 S.C.M.R. 466 (Supreme Court or Pakistan) it is clear that
the compromise or compounding of an offence having taken place at bail stage, can be
acted upon by the Court subsequently as well when the main case comes before it for
hearing. In my view, in the instant case, the leaned Additional Sessions Judge was unable
to interpret the aforesaid authorities in the proper perspective.

9. The learned counsel for the petitioners has asserted in this case that the legal heirs of
the deceased had been compensated at the bail stage and it was due to the said reason that
they had filed affidavits at the bail stage and by appearing in the Court of learned
Additional Sessions Judge had affirmed the contents of the affidavits wherein it had been
stated by them that they will have no objection if the accused were admitted to bail or
were acquitted in the case. It is not understandable how it was possible for the legal heirs
of the deceased to rid themselves of the implications of their affidavits submitted before a
Court of law. I agree with the learned counsel for the petitioners that, the compromise
effected between tire parties even at bail stage remains valid and cannot be revoked by
any of the parties unilaterally, when the case comes up later before the Court for trial. The
only thing which the Court has to do is to satisfy itself whether the compromise had been
actually effected between the parties at bail stage.

10. In view of what has been stated above, the revision petition is accepted, the impugned
order dated 7-2-2002 is set aside and the matter is seat back to the learned trial Court with
the direction to re-hear the arguments on the application so as to satisfy itself whether the
offence had been actually compounded at the bail stage and in case the learned trial Court
reaches such a conclusion, it shall act in the light of the pronouncement of the
Honourable S1dpreme Court of Pakistan, reported in Syed Iftikhar Hussain Shah v. Syed
Sabir Hussain Shah (1998 SCMR 466).

H.B.T./B-101/L Revision accepted.

2002 P Cr. L J 1003

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD IQBAL and another---Petitioners

Versus

IRSHAD AHMAD and 2 others---Respondents

Criminal Miscellaneous No.144/Q of 2001, decided on 1st November, 2001.

(a) Penal Code (XLV of 1860)---

----S. 324/34---Criminal Procedure Code (V of 1898), Ss.249-A, 497 &

561-A---Quashing of proceedings---Compromise was effected at bail stage with the
injured without mention of receipt of any amount as Badl-e-Sulh ---Such compromise
was to the extent of bail only and could not be made basis for acquittal of accused under
S.249-A, Cr.P.C.

Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah and another 1995
MLD 563 and Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah 1998 SCMR 466
distinguished.

(b) Criminal Procedure Code (V of 1898) ---

----Ss.249-A, 497 & 561-A---Penal Code (XLV of 1860), S.324/34--Quashing of

proceedings---Compromise---Trial Court cannot accept application under S.249-A,
Cr.P.C., without calling the complainant and other party merely on the basis of
compromise filed at the stage of bail--Trial Court has to satisfy itself that compromise is
effected between the parties with free-will and consent and if "Badl-I-Sulh" has been
received that has already been verified by the Court---Trial Court cannot acquit accused
in slipshod manner without satisfying itself about the authentication of compromise
between the parties.

Muhammad Rafique Waraich for Petitioners.

Ch. Ali Akbar Bhinder for Respondents.

Imtiaz Ahmad Chaudhry for the State.

ORDER

Through this petition under section 561-A, Cr.P.C. the petitioners seek quashment of
proceedings in case F.I.R. No.42 of 1997 registered on 12-2-1997 under section 324/34,
P.P.C. with Police Station Cantt. Gujranwala on the statement of Irshad Ahmad son of
Ahmad Din.

2. The brief facts of the case are that on 11-2-1997 at 3-00 p.m. when the complainant
was sitting on his shop Shahid and Iqbal sons of Muhammad Ramzan armed with pistols
came at the spot. Iqbal raised a Lalkara on which Shahid fired with his pistol hitting the
complainant on his left thigh. In the meanwhile Muhammad Ilyas and Muhammad Idrees
attracted to the spot and witnessed the occurrence. Some shots were also fired by Iqbal
accused in order stop the witnesses on coming near Mumtaz. The petitioners were
arrested. They moved an application for bail after arrest which was pending in the Court
of Ch. Sarfraz Ahmad Cheema, Presiding Officer, Anti-Terrorist Court at Gujranwala.
During the arguments affidavit of Mumtaz injured son of the complainant was produced
that he has entered into a compromise with the accused/petitioners and does not want to
pursue the case. He himself also appeared in the Court and made a statement that he was
injured by Shahid and Iqbal petitioners but he has pardoned them and does not want to
pursue the case. Due to this reason the bail w allowed to the petitioners vide order, dated
21-4-1997.

3. Subsequently after the investigation the challan was submitted before the learned trial
Court. An application was moved before the learned trial Court under section 249-A,
Cr.P.C. for the acquittal of the petitioners that a compromise has already been effected
between the parties at the time of grant of bail. The learned Magistrate, Section 30 vide
order, dated 22-1-2001 accepted the application of the petitioners under section 249-A,
Cr.P.C. and acquitted them from the, charges. Aggrieved by the aforesaid order of
acquittal, revision petition has been filed by the complainant which has been accepted by
the learned Additional Sessions Judge, Gujranwala, vide order, dated 8-6-2001 and he
while setting aside the order, dated 22-1-2001 remanded the case for fresh trial.
Aggrieved by the said order, dated 8-6-2001, this petition under section 561-A, Cr.P.C.
has been filed for setting aside of the provisional order.

4. Learned counsel for the petitioners contends that the compromise was effected and
duly recorded by the learned Special Judge and granted bail after the recording of the
statement of the injured P.W. and the injured P.W. could not resile from his earlier
statement and if he has resiled, even then the order of acquittal was sustainable and the
impugned orders illegal and unlawful. He relied on Syed Sabir Hussain Shah and another
v. Syed Iftikhar Hussain Shah and another 1995 MLD 563 in which the High Court has
held that if a compromise is effected at bail stage the accused can be acquitted by the trial
Court on the basis of the compromise. Criminal Petition for Special Leave to Appeal was
filed against the said judgment which has been dismissed and is reported in Syed Iftikhar
Hussain Shah v. Syed Sabir. Hussain Shah 1998 SCMR 466. He further contends that the
compromise was effected after obtaining Rs.15,000 by the injured from the petitioner and
an application was moved to D.I.-G. in which an inquiry was conducted and during the
inquiry the allegation was accepted by the complainant that he has received Rs.15,000.
He argues that the impugned order passed by the learned trial Court be set aside.

5. On the other hand learned counsel appearing on behalf of the respondent denies the
receipt of any amount from the petitioners at the time of compromise before the Court
while allowing bail after arrest to the petitioners.

6. Learned counsel for the State has also opposed this petition on the ground that injured
P. W's. affidavit was only to the extent of grant of bail after arrest to the petitioners and
cannot be used for the acquittal of the petitioners by accepting their application under
section 249-A, Cr.P.C.

7. I have heard the learned counsel for the parties and also perused the documents
attached with this petition. Admittedly the compromise was effected at the time of grant
of bail and an affidavit was sworn by the injured P. W. that he has entered into a
compromise with the petitioners and they may be allowed bail and the same was granted
to the petitioners. There is no mention in the affidavit or in the statement of injured P.W.
that he has received any amount as 'Badl-i-Sulh' and it can be held that the compromise
was to the extent of grant of bail only and cannot be made the basis for the acquittal of
the petitioners under section 249-A, Cr.P.C. The case-law cited by the learned counsel for
the petitioners is distinguishable as it is mentioned in the facts of the said case that
Rs.4,000 was received by the injured at the time of compromise and it was accepted by
the injured before the learned trial Court who granted bail to the petitioners. In Syed
Iftikhar Hussain Shah's case the Honorable Supreme Court has also dismissed the petition
on the ground that the compromise was effected after obtaining the amount/Badl-i-Sulh
by the injured P.W. and that compromise is valid even before the trial Court and the trial
Court was empowered to acquit the accused on the basis of such compromise but in the
instant case. I find nowhere mentioned that the injured P.W. has received any amount as
`Badl-i-Sulh' from the petitioners and has then made a statement before the Court for the
grant of bail. The trial Court has haphazardly accepted the application under section
249-A, Cr.P.C. without calling the complainant and without calling the other party merely
on the basis of a compromise which was filed at the time of grant of bail to the
petitioners. This procedure cannot be adopted by the trial Court as the trial Court has to
satisfy itself that the compromise has been effected between the parties with free-will and
consent and if `Badl-i-Sulh' has been received that has already been verified by the
Courts and the trial Court cannot acquit the accused in a slipshod manner without
satisfying itself about the authentication of the compromise between the, parties. The
impugned order is based on cogent reasons and is supported by the material on the record
and is sustainable in law.

8. This petition has no merit and is accordingly dismissed.

J.A.M./M-873/L Order accordingly.

P L D 2010 Supreme Court 657

Present: Nasir-ul-Mulk, Khilji Arif Hussain and Mian Saqib Nisar, JJ

HASSAN AKHTAR and others---Petitioners

Versus

AZHAR HAMEED and others---Respondents

Civil Petition Nos.499 and 500 of 2009, decided on 19th February, 2010.

(On appeal from the judgment dated 28-1-2009 of the Islamabad High Court,
Islamabad passed in R.S.A.No.2 of 2007).

(a) Civil Procedure Code (V of 1908)---

----O. III, Rr. 3, 4 & O.XXIII, Rr. 1(1), (3)---Advocate's power to compromise or
abandon claim on behalf of his client---Scope---Advocate in his discretion could do
so in interest of his client, unless his Vakalatnama restricted such authority---
Principles.

An Advocate has authority to make statement on behalf of his client, which is

binding upon the client, unless there is any thing contrary in the Vakalatnama
putting restriction on the authority of the Advocate to compromise or abandon claim
on behalf of the client. The Advocate's power in the conduct of a suit allows him to
abandon the issue, which in his discretion, advisable in the general interest of his client.

Messrs Arokey Ltd. and another v. Munir Ahmed Mughal and 3 others PLD 1982 SC 204
rel.

(b) Civil Procedure Code (V of 1908)---

----S. 39---Punjab Pre-emption Act (I of 1913), S.6---Civil Procedure Code (V of 1908),

O.II, R.2, O.III, R.4 & O.XXIII, R.1(3)---Suit for cancellation of sale-deed executed by
alleged attorney and in alternative for possession through pre-emption---Withdrawal of
claim by plaintiff to extent of cancellation of sale-deed---Second suit for cancellation of
sale-deed filed by plaintiff before dismissal of pre-emption suit by Trial Court on statement
of his Advocate not pressing for relief prayed therein---Dismissal of second suit by Trial
Court for being barred by O.XXII, R.1(3) and O.II, R.2, C.P.C.---Such judgment of Trial
Court upheld by First and Second Appellate Courts---Plea of plaintiff that his Advocate was
not authorized to make such statement, thus, second suit was not barred---Validity---Record
revealed that same Advocate after making statement abandoning claim in first suit pertaining
to sale-deed not only kept representing plaintiff, but also filed second suit---All this would
show that Advocate had acted with authority and consent of plaintiff, who was bound by
his acts---Vakalatnama of Advocate had authorized him to make such statement on behalf
of plaintiff including power to compromise or refer matter to arbitration---Supreme Court
refused to grant leave to appeal against impugned judgment.

Ghasiram Goenka v. Harbux Goberdhonedas and another AIR 1980 Cal. 477; Din
Muhammad and another v. Farooq Mirza PLD 1955 Sindh 62 and Muhammad Hussain
and others v. Mst. Hanaf Ilahi and others 2005 SCMR 1121 ref.

Messrs Arokey Ltd. and another v. Munir Ahmed Mughal and 3 others PLD 1982 SC 204
rel.

Gulzarin Kiani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-
Record for Petitioners.

Saeed-ul-Haq, Advocate Supreme Court for Respondents.

Date of hearing: 19th February, 2010.

JUDGMENT

KHILJI ARIF HUSSAIN, J.---This judgment will dispose of civil Petition No.499 of
2009 and Civil Petition No.500 of 2009, since the parties as well as questions of law and
facts involved in both petitions are common.

2. The petitioners seek leave to appeal in both these petitions from the impugned common
judgment passed by learned Single Judge of the then Islamabad High Court, dismissing
petitioners' R.S.A. Nos. 2 and 3 of 2007 filed against the two separate judgments of the
learned Additional District Judge as well as that of learned Civil Judge, Islamabad,
whereby the two suits filed by the plaintiff/predecessor-in-interest of the petitioners were
dismissed.

3. Facts necessary for decision of these petitions are that Suit No.336 was filed by Sh.
Asghar Hussain, plaintiff/predecessor-in-interest of the petitioners, seeking declaration to
the effect that the sale-deed executed by Muhammad Yosuaf, attorney of original owner
Sh. Ahmad Hassan, brother of the plaintiff, in favour of his relatives in respect of the land
in question are void and in the alternative, a decree for possession through pre-emption
was claimed.

4. Suit No.337 of 1983 was also filed by the predecessor-in-interest of the petitioners
seeking declaration to the effect that the sale made by Muhammad Yousaf, Attorney of
said Sh. Ahmad Hassan in favour of his relatives is void and in the alternative, a decree
for possession through pre-emption was claimed.

5. Later on 7-8-1985, Sh. Asghar Hussain plaintiff/predecessor-in-interest of the

petitioners, made a statement before the trial Court that he will only pursue the suit to the
extent of pre-emption and withdraws the suit to the extent of cancellation of the sale-deed
in question. The learned Civil Judge on the basis of the statement of the Advocate
abandoned the claim of cancellation of the sale and ordered that the suit would proceed to
decide issues relating to pre-emption.

6. On 17-2-1987 Raja Abdul Rahim, Advocate for the said plaintiff made a statement on
the ground that he had filed a suit for cancellation of the sale and did not want to proceed
with the pre-emption suit. Learned Civil Judge, dismissed the said suit on the same day.
Before dismissal of said suit, Sh. Asghar Hussain, predecessor-in-interest of the
petitioners, filed Suit Nos. 145 and 146 of 1987.

7. Both the suits were contested by the respondents filing written statements pleading that
the suit are barred under Order XXIII, Rule 1(3), C.P.C. and Order II, Rule 2, C.P.C.

8. On the basis of the pleadings of the parties, after framing identical issues in both the
suits including the issue "whether the suits is barred under Order II, Rule 2 and Order
XXIII, Rule 1(3), C.P.C. and after taking into consideration the evidence led by the
parties before him learned Trial Judge by separate judgments dated 15-12-200(sic)
dismissed the suits, finding both of them barred under the provisions of Orders II, Rule 2
of the C.P.C. The plaintiff was estopped from his own words and conduct to file the suit.

9. Feeling aggrieved, the petitioners filed two appeals before the District judge,
Islamabad. Both the appeals were dismissed by learned Additional District Judge,
Islamabad, by his separate judgments dated 6-11-2006. There-against, the petitioners
filed appeals before the High Court, which also could not succeed and were dismissed by
the common judgment, impugned herein.

10. Heard Mr. Gulzarin Kiani, Advocate Supreme Court for the petitioners and Mr.
Saeed-ul-Haq, Advocate Supreme Court for the respondents.

11. Contentions of learned counsel for the petitioners are that the orders for dismissal of
the suits were passed by the learned Civil Judge on the basis of statement of the Advocate
not pressing the relief pertaining to cancellation of sale-deed, whereas the Advocate was
not authorized to make such statement and suits filed by the plaintiff/predecessor-in-
interest of the petitioners were not barred by Order XXIII, Rule 1(3) or Order II, Rule 2
of the C.P.C. In support of the contention learned counsel placed reliance on Ghasiram
Goenka v. Harbux Goberdhonedas and another AIR 1980 Cal. 477; Din Muhammad and
another v. Farooq Mirza PLD 1955 Sindh 62 and Muhammad Hussain and others v. Mst.
Hanaf Ilahi and others 2005 SCMR 1121.

12. We have heard learned counsel and, with their assistance, have gone through the
material on record carefully. It appears from the record that the Advocate for the plaintiff,
who made statement regarding withdrawal of the claim in Suit No.336 of 1983, filed
subsequent suits for cancellation of the sale-deed.

13. It is by now well-settled that an Advocate has authority to make statement on behalf
of his client, which is binding upon the client, unless there is any thing contrary in the
Vakalatnama putting restriction on the authority of the Advocate to compromise or
abandon claim on behalf of the client. The Advocate's power in the conduct of a suit
allows him to abandon the issue, which in his discretion, advisable in the general interest
of his client.

14. From the record it appears that after making statement abandoning the claim
pertaining to sale in question, learned advocate for the plaintiffs/predecessor-in-interest of
the petitioners, not only kept representing him but also filed another suit seeking
cancellation of the sale-deed and thereafter withdrew the earlier suit filed by him. All
these acts of learned Advocate show that he acted with authority and consent of the
plaintiff/predecessor-in-interest of the petitioners, who was bound by the acts of his
Advocate.

15. From the Vakalatnama on record, it also appears that learned Advocate was
authorized to make said statement on behalf of the plaintiff including the power to
compromise or refer the matter to arbitration.

16. Where Vakalatnama is given, the counsel empowered to compromise the suit without
any express authority from his client unless such powers are specifically countermanded
by the client.

17. While dealing with the issue wherein terms of the Vakalatnama given to the
Advocate, appear almost similar to one given to Advocate who was appearing before the
trial Court which reads as under:--

This Court in the case of Messrs Arokey Ltd. and another v. Munir Ahmed Mughal and 3
others PLD 1982 SC-204 held that Advocate who represented the petitioner was
competent to enter into compromise.

18. In the circumstances, no infirmity, legal or factual has been pointed out in the
impugned judgment nor any misreading or non-reading of the evidence is shown
justifying interference of this Court with the same.

19. Consequently, finding no merit in these petitions, we dismiss the same and leave
refused.

S.A.K./H-3/S Leave refuse

2004 S C M R 781

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Abdul Hameed

Dogar, JJ

ALI BROTHERS and others---Petitioners

Versus

Miss NAUSHABA JABEEN---Respondent

Civil Miscellaneous Applications Nos. 1261 to 1265 of 2002 in Civil Appeals Nos.634 to
638 of 2000, decided on 24th July, 2002.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan (1973), Art. 185(3)---Decision of appeal on basis

of compromise---Application under S.12(2), C.P.C., on the ground that other counsel who
appeared on behalf of petitioner had no authority from his Advocate-on-Record to enter
into compromise--Validity---Advocate-on-Record engaged by petitioner was not present
on the date of hearing---No affidavit or other statement of Advocate-on Record was
appended with such application to the effect that he never gave authority to other counsel
to settle matter through compromise---No affidavit of other counsel was filed to the effect
that he was expressly debarred by Advocate-on-Record from entering into any
compromise--Such application had been filed after a period of more than one year, when
time granted to petitioner to vacate premises was about to expire---One of the
tenants/appellants on Court question admitted that other counsel was given traveling
expenses for appearance before Supreme Court on the date, when appeal was
decided---No case was made out for interference in judgment based on compromise---
Application under S.12(2), C.P.C., was dismissed as having no merits.

Muhammad Zaman Bhatti, Advocate Supreme Court with Ch. Muhammad Akram,
Advocate-on-Record for Petitioners (in .C.M.As. Nos. 1261 to 1265 of 2002).

Nemo for Respondent.

Date of hearing: 24th July, 2002.

ORDER

By this common order, we propose to decide Civil Miscellaneous Applications Nos.1261

to 1265 of 2002 as questions of law and facts are identical in all of them.

2. Through order dated 1-6-2001, civil appeals filed by the petitioners were disposed of
on the basis of the compromise arrived at between their learned counsel and the learned
counsel for the respondent. These applications have been made under section 12(2),
C.P.C. alleging that Mr. H.A. Rehmani, Advocate Supreme Court who appeared on behalf
of the petitioners had no authority or instructions from the petitioners'
Advocate-on-Record to enter into a compromise. It was also alleged that the said learned
counsel for the petitioners had colluded with the other party and unauthorizedly entered
into a compromise and obtained order dated 1-6-2001 in the appeals.

3. Mr. Akhlaq Ahmad Siddiqui, Advocate-on-Record was engaged by the petitioners but
he was not present on the said date when the appeals came up for hearing as per record of
the appeals. No affidavit or other statement of Mr. Akhlaq Ahmad Siddiqui,
Advocate-on-Record has been appended with these applications to the effect that he did
not while instructing or authorizing Mr. H.A. Rehmani, Advocate Supreme Court to
appear and plead the case on behalf of the petitioners give authority to settle the matter
through compromise. No affidavit either of Mr. H .A. Rehmani, Advocate Supreme Court
has been filed to the effect that he A was expressly debarred by his Advocate-on-Record
while giving instructions or authority from entering into any compromise.
4. We may also observe that the conduct of the petitioners is also not above board. The
judgment based on the compromise was passed as far back as on 1-6-2001 whereas these
applications have been moved after a period of more than one year when time granted to
the petitioners to vacate the premises was about to expire.

5. Mr. Ali Baqar who is one of the tenants in one of the shops and appellant in one of the
appeals present in Court when questioned admitted that Mr. H.A. Rehmani, Advocate
Supreme Court was given traveling expenses, etc., for appearance before this Court on
the date when the appeals were decided. He when further questioned has no C answer
that in these circumstances, how could he plead that the petitioners did not come to know
about the judgment based on compromise immediately thereafter, for a man of ordinary
prudence would certainly approach his learned counsel after the date of hearing to know
as to what had happened in the appeal.

6. For the foregoing reasons, no case has been made out for interference in the judgment
dated 1-6-2001 based on compromise, therefore, these applications have no merits which
are accordingly dismissed.

S.A.K./A-305/S Application dismissed.

2004 M L D 140

[N.-W.F.P. Bar Council Tribunal, Peshawar]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam Khan
and Saeed Akhtar, Members

ROIDAD KHAN---Complainant

Versus

MUTABBAR KHAN, ADVOCATE---Respondent

Case No.T-25 of 2001, decided on 31st May, 2003.

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----Ss.41 & 44---Professional misconduct---Withdrawal of complaint--Effect---Advocate

against whom complaint of professional misconduct was filed having remained absent,
Members of Disciplinary Committee initiated ex parte proceedings and after recording ex
parte evidence referred the matter for final adjudication to the Tribunal---When the matter
came for consideration before Tribunal, complainant submitted an application for
withdrawal of his complaint on the ground that he had patched up the matter with the
Advocate---Complainant in his statement recorded had admitted that entire amount
mentioned by him in his complaint had been returned, to him by the Advocate and that to
that extent his grievance had been redressed---Validity---Not only the professional
misconduct but other conduct of the Advocate could also be probed into by the
Disciplinary Committee of Bar Council as well as by Tribunal---Misconduct need not be
the direct result of violation of jural relations of counsel and client, but even, if it had
remote nexus with profession of an Advocate, as in a case whereunder the garb of
advocacy and relation of trust the agreement was executed and suit amount was extracted
from the complainant, would definitely amount to a conduct unbecoming of a
counsel---Advocate, in the present case was found guilty of professional misconduct, but
in view of written compromise, lenient view of the matter had been taken and Advocate
was reprimanded and was directed to be careful in future and to maintain dignity of legal
profession both within and outside the Court., with costs.

AIR 1934 Lah. 251; Muhammad Amin v. M. Asghar Kokar, Advocate 1992 CLC 1556;
Irshad Khan v. Gohar Rahman Khatak, Advocate 2000 MLD 1264; Wajid v. Zafar
Khalid, Advocate 2000 MLD 1275; Ali Rehman v. Zaheer ud Din Baber, Advocate 2001
MLD 895 and Mst. Surraya Begum v. M. Aslam, Advocate 2002 CLC 1931 ref.

Complainant in person.

Shamsur Rehman for Respondent.

Jamil Qamar for the State.

JUDGMENT

MUHAMMAD ALAM KHAN, MEMBER.---On 10-3-2001 complainant Roidad Khan

son of Yasin Khan filed a complaint in the N.-W.F.P. Bar Council against Mutabbar Khan
Advocate son of Nasir Khan resident of Sultan was Tehsil Dugger District Buner,
.alleging therein that the respondent had under the garb of advocacy got executed an
agreement dated 11-7-2000 respecting certain landed property for an agreed amount of
Rs.2,75,000. That after the lapse of some time the respondent offered to the complainant
that the complainant should pay Rs.10,000 as profit and the land will be returned to the
complainant. That on this understanding the complainant collected an amount of
Rs.2,75,000 as loan from his Kith and Kin and requested the respondent to take back the
money and return the land. It is further alleged in the complaint, that on this, the
respondent intimidated him and threatened the complainant for dire consequences. Later
on the respondent sold the land to Abdul Majeed etc. Sons of Rashid Khan and kept the
sale consideration of Rs.2,85,000 which was belonging to the complainant. It is averred
in the complaint that the respondent taking undue advantage of his position as an
Advocate had betrayed the trust which the complainant has reposed in him. So it was
prayed that as the respondents has committed a professional misconduct which is
unbecoming of a counsel and strict legal action under the law was prayed for.

2. The Disciplinary Committee of N.-W.F.P. Bar Council initiated the proceedings and the
respondent submitted his detailed written statement dated 5-7-2001 in which besides the
factual objection it was submitted that the allegations contained, in the complaint does
not amount to a professional misconduct, as there was no jural relations of counsel and
client between the parties, the Bar Council has got no jurisdiction to entertain the instant
complaint as the allegations in the complaint amounts to civil liability. However the sale
as alleged in the complaint was admitted.

3. The respondent participated in the proceedings but however, on 18-8-2001 he was

absent so the learned Members of the Disciplinary Committee initiated ex parte
proceedings against the respondents and after recording the ex parte evidence referred the
matter for final adjudication to this Tribunal vide Reference dated 11-8-2001.

4. On 29-3-2003 the matter came for consideration before this Tribunal and the
complainant submitted an application for withdrawal of the complaint on the ground that
he had patched up the matter with the respondent. On 29-3-2003 the application was
placed on file and his statement could not be recorded as the complainant was not in
possession of his National Identity Card and nobody was there to identify him, so the
matter was adjourned for today. However, the respondent was asked to consider the point
that whether the professional misconduct could be legally withdrawn on the basis
compromise or not.

5. Today the statement of the complainant was recorded supported the contents of the
withdrawal application and admitted that the entire amount mentioned in the complaint
has returned by the respondent and to this extent the grievances of the complainant have
been redressed.

6. On legal aspects we have heard the respondent as well as the learned Additional
Advocate-General Government of N.-W.F.P. and have gone through the case file
minutely.

7. Regarding the question of non-existence of jurisdiction of the N.-W.F.P. Bar Council,

under section 41 of the Legal Practitioners and Bar Councils Act 1973, it is not only the
professional misconduct but as well as other conduct of an Advocate which can be probed
into by the Disciplinary Committee of N.-W.F.P. Bar Council as well as this Tribunal. The
misconduct need not be the direct result of violation of jural relations of counsel and
client; but even if, it has remote nexus with the profession of an Advocate, as in the
present case under the garb of advocacy and relation of trust the agreement was executed
and the suit amount extracted from the complainant, will definitely amount to a conduct
unbecoming of a counsel. Reliance in this respect is placed in re in the matter of
Barrister/Advocate reported in AIR 1934 Lahore page 251 (G).

8. The question of withdrawal of the complaint of professional misconduct came for

consideration before the Punjab Bar Council Tribunal in a case titled Muhammad Amin v.
M. Asghar Kokar Advocate, reported in 1992 CLC page 1556 wherein his Lordship Mr.
Justice Irshed Hassan Khan the learned Chairman of the Tribunal, as he then was, held
that even if the parties enter into a compromise and the respondent accused undertake to
return the money the same will not wash away the stigma of misconduct committed by
him. Furthermore, even, the withdrawal of a complaint will not exonerate the respondent.
because in a case of misconduct no withdrawal can exonerate the respondent. However,
the same can be taken as mitigating circumstances while determining the quantum of
punishment. The case of Asghar Kokar referred to above has consistently been followed
in Irshad Khan v; Gohar Rahman Khatak Advocate reported in 2000 MLD page 1264,
Wajid v. Zafar Khalid Advocate reported in 2000 MLD page 1275 and Ali Rehman v.
Zaheer ud Din Baber Advocate reported in 2001 MLD page 895 and Mst. Surraya Begum
v. M. Adam Advocate reported in 2002 CLC 1931 so the application for withdrawal is
rejected.
9. In view of the facts and circumstances narrated above, we fine the respondent guilty of
professional misconduct but in view of the written compromise take a lenient view of the
matter and reprimand him is directed to be careful in future and to maintain the dignity of
the profession both within and outside the Court with costs of the amounting to Rs.5,000
(five thousand) payable to the N.-W.F.P. Bar Council Peshawar. The respondent is
directed to deposit the cost within 30 days from today with the Secretary N.-W.F.P. Bar
Council failing which the same will be recovered through the process of C execution by
the learned District and Sessions Judge Buner at Dugger under the provisions of section
44 (3) (B) of the Legal Practitioners and Bar Councils. Act 1973.

H.B.T./860/P Order accordingly.

2001 M L D 865

[N.-W.F:P. Bar Council Tribunal]

Before Justice Mian Muhammad Ajmal, Chairman, Muhammad Alam Khan and
Syed Rahman Khan, Members

ELAHI BAKHSH---Appellant

versus

Sheikh MUHAMMAD SHAKEEL, ADVOCATE---Respondent

Appeal No.T-A/33 of 1998, decided on 10th July, 1999.

Legal Practitioners and Bar Councils Act (XXXV of 1973)----

----S.41---Professional misconduct---Complaint against advocate was that he being

counsel for the complainant party, got in league with the opposite-party and in collusion
with opposite-party withdrew the civil suit without obtaining any instructions from the
complainant and without any intimation to complainant party---Evidence on record had
revealed that application for withdrawal of the suit was -submitted by the complainant to
the Court which recorded the statement of - the complainant in the capacity of special
attorney for the plaintiffs duly identified by the Advocate before the Court---Court, after
satisfying itself regarding the genuineness of the compromise, dismissed' the suit as
withdrawn-Such was an independent act of the special attorney/complainant for the
plaintiffs and no embargo could be placed on the right of a party to withdraw an action or
abandon his claim against all or some of the defendants in the suit---Order of withdrawal
of the suit having been judicially scanned and maintained by a Court of competent
jurisdiction, Bar Council Tribunal could not sit as a. Court of appeal on orders which had
legally attained finality---Advocate, in circumstances, had not committed any
professional misconduct.

Assadullah Marwat, Law Officer for the Government.

Appellant in person. Respondent in person:

JUDGMENT

MUHAMMAD ALAM KHAN (MEMBER).---On 7-11-1997 Elahi Bakhsh

complainant filed a complaint in the N.-W.F.P., Bar Council Peshawar, alleging therein,
that the respondent Sheikh Muhammad Shakeel, Advocate D.I. Khan was, engaged by
him as a counsel in a civil suit titled Mst. Sabro daughter of Ghulam Hyder and others v.
Abdul Sattar and others which was pending in the Court of Civil Judge, D.I. Khan in
which the complainant was an attorney for the plaintiffs. It was further alleged that
alongwith the above mentioned civil suit some other cases were also entrusted to the
respondent. The fee of the respondent was mutually settled between the parties and the
same was paid to the respondent, thus the relationship of counsel and client came into
existence between the complainant and the respondent.

It was further alleged, in the complaint, that the respondent Advocate got in, league with
the opposite party and in collusion with them withdrew the civil suit, without obtaining
any instructions from the complainant and without any intimation either to the plaintiffs
or to the complainant. Thus, the respondent has committed professional misconduct
within the ambit of the provisions of Legal Practitioners and Bar Councils Act, 1973 and
Rules framed thereunder and prayed for taking disciplinary action against the respondent,
under the above said law.

2. The Disciplinary Committee of the N.-W.F.P., Bar Council Peshawar initiated

proceedings against the respondent and the respondent submitted written statement,
wherein the allegations of the complainant as reflected in the complaint were denied. It
was however, averred that in fact the respondent was engaged as counsel by the
complainant for the plaintiffs in the capacity as special attorney in a civil suit titled Mst.
Sabro and others v. Abdul Sattar and others which was then pending in the Court of Civil
Judge, D.I. Khan but on 12-5-1997 an application was submitted by the complainant for
the withdrawal of the suit unconditionally, as according to the complainant, parties had
arrived at a private settlement and the matter had been compromised and the learned Civil
Judge on 12-5-1997 recorded the statement of Elahi Bakhsh complainant and dismissed
the suit being satisfied that the parties have arrived at a private settlement.

3. The Disciplinary Committee of the N.-W.F.P., Bar Council Peshawar after recording of
evidence of the parties pro and contra as they wished to adduce and after hearing the
parties, dismissed the complaint by a detailed order dated 28-3-1998.

4. The complainant being aggrieved of the order of the Disciplinary Committee of the
N.-W.F.P., Bar Council, Peshawar submitted an application/appeal directly to this
Tribunal upon which a notice was issued to the respondent and during the course of.
proceedings respondent wished to submit a reply, consequently the respondent filed the
reply and learned member of this Tribunal Syed Rahman Khan was empowered to record
evidence which was recorded.

5. Before us the complainant/appellant reiterated the same contention as put forward by

him before the Disciplinary Committee of the N.-W.F.P., Bar Council Peshawar and
submitted that the respondent without seeking any instructions from the appellant and in
league with the opposite side i.e. Abdul Sattar etc., defendants, withdrew a pending suit
titled Mst. Sabro etc., v. Abdul Sattar etc. and thus deprived the appellant of his valuable
rights in the suit-land. On the other hand the respondent vehemently contended that the
suit was withdrawn under the instructions of the complainant. So much so, that when the
withdrawal application was drafted, it was taken by the complainant to the plaintiffs to
Chak No.87/TDA Tehsil Karor District Layya, Punjab and got their thumb impressions
on the withdrawal application and thereafter, the same was submitted to the Court of
learned. Civil Judge, D.I. Khan.

6. Perusal of the record would reveal that the application for withdrawal was submitted
by the complainant to the Court of Civil Judge, D. I. Khan, the learned Civil Judge
recorded the statement of the complainant in the capacity of special attorney for the
plaintiffs duly identified by the respondent Advocate before the Court on 12-5-1997 and
the Court after satisfying itself regarding the genuineness of the compromise dismissed
the suit of the plaintiff as withdrawn. It was an independent act of the special attorney for
the plaintiffs and no embargo can be placed on the right of a party to withdraw an action
or abandon his claim against all or some of the defendants in the suit under the provisions
of Order 23, Rule 1, C.P.C.

7. The appellant/complainant also challenged the withdrawal order in the suit through an
application under the provisions of section 12 subsection 2, C.P.C. on the basis of fraud,
collusion, misrepresentation and want of jurisdiction, which after judicial scrutiny was
dismissed by the learned Civil Judge, D.I. Khan on 12-1-1998 and the appeal/revision of
the appellant also failed before the learned District Judge. D.I. Khan in Appeal No.RCA
11 of 1998 decided on 9-6-1999 and thus, the order of withdrawal was judicially scanned
and maintained by a Court of competent jurisdiction and this Tribunal cannot sit as a
Court of appeal on those orders which have legally attained finality.

8. Keeping in view the facts and circumstances of the case narrated above there is no
force in the present appeal which is hereby dismissed with no order as to costs.

H.B.T./237/P Appeal dismissed.

2000 C L C 1959

[Punjab Bar Council Tribunal]

Before Justice Tassaduq Hussain Jilani, Chairman, Mian Muhammad Ameen Kalanauri
and Rana Ikram Ullah Khan, Members

MUHAMMAD RAMZAN SHAHID ---Petitioner

versus

IKRAM ULLAH SALEEMI, ADVOCATE---Respondent

File No.3 of 1995, decided on 10th April, 1999

Legal Practitioners and Bar Councils Act (XXXV of 1973)- --

----5. 41(4)---Professional misconduct of Advocate---Suit for recovery of rent

amount---Compromise having been arrived at between the parties, Advocate of
complainant made a conceding statement to the effect that his client (complainant) did
not want to pursue the matter---Suit was dismissed as withdrawn in terms of compromise
arrived at between the parties---Terms of compromise arrived at between the parties
having not been denied by complainant, Advocate did not commit any professional
misconduct in making conceding statement that complainant did not want to pursue the
matter---Complaint against Advocate was disposed of in view of terms and undertaking
given by the parties.

Complainant in person. M. Latif Rawn for Respondent. Respondent in person. Abdul

Hafeez Butt, Advocate in person. Ghulam Haider Alghazali, Addl. A.-G. Muhammad
Akbar Bhatti, Secretary, Punjab Bar Council.

Date of hearing: 10th April, 1999.

ORDER

The charge against the respondent-Advocate is that in a suit for recovery of rent
amounting to Rs.57,600, he made a conceding statement on 9-2-1995 to the effect that
complainant did not want to pursue the matter in terms of which, the suit was dismissed
as withdrawn on 9-2-1995. The stand of the respondent-Advocate is that the complainant
had filed a suit for recovery of the afore-referred money and an application for execution
of the judgment and decree in an ejectment matter. The latter application was disposed of
in terms of compromise, dated 19-1-1995 through a written application and in the said
application of compromise which was marked by the Court as Exh.C-1, it was stipulated
as under:--

(i) That the judgment-debtor Ghayas-ud-Din Butt, shall pay the arrears amounting to
Rs.1,12,000. The payment was to be made through judgment-debtor's brother namely,
Abdul Hafeez Butt, Advocate.

(ii) Out of the afore-referrred amount, Rs.60,000 was paid in Court.

(iii) That the future rent of the shop would be Rs.4,000.

(iv) That,Mr. Abdul Hafeez Butt, Advocate shall be bound to make the remaining
payment of Rs.52,000

2. Respondent-Advocate admits that since the parties had compromised, in afore-referred

terms, he had instructions to make conceding statement to the effect that
complainant/plaintiff did not want to pursue the case.

3. We have gone through the order, dated 19-1-1995 and 19-2-1995. After the
compromise between the parties on 19-1-1995, respondent Advocate made the following
statement on 9-2-1995:--
4. It is conceded by the complainant that Rs.57,600 which was subject matter of the suit
in which the afore-referred statement was made was the same amount which was reduced
to Rs.52,000 in terms of the compromise arrived at between the parties on 19-1-1995.
That being so, we are of the view that respondent-Advocate did not commit any
professional misconduct and this complaint is misconceived. However, we note that Mr.
Abdul Hafeez Butt, Advocate, real brother of the judgment-debtor is responsible to make
the payment of the amount in terms of the compromise arrived at between the parties on
19-1-1995. The said Advocate is also present before this Tribunal pursuant to this
Tribunal's order. He concedes that the judgment-debtor Ghayas-ud-Din Butt, his real
brother is bound to make the payment and he will make efforts for the same. The
complaint stands disposed of in terms noted above.

H.B.T./M-1180/L Order accordingly.

1991 S C M R 1371

Present: Nasim Hasan Shah and Ghulam Mujaddid, JJ

MUHAMMAD FAZIL and others--Petitioners.

versus

Mst. SUGHRAN BIBI and others--Respondents

Civil Petition No.641 of 1989, decided on 28th October, 1989.

(On appeal from the judgment, dated 17-4-1989 of the Lahore High Court, Lahore in
Regular Second Appeal No.618 of 1980).

Qanun-e-Shahadat (10 of 1984)--

----Art.163---Civil Procedure Code (V of 1908), S.100---Special oath by one of the

plaintiffs---Effect---During proceedings of second appeal, one of plaintiffs/appellant filed
application wherein he stated that if the specified defendant, swore on Holy Quran and
stated that consideration for the sale had been paid to the appellant, he would not object
to the decree passed in favour of defendants being maintained---Defendants accepted the
challenge and tool the special oath, whereupon High Court dismissed the second
appeal---Petitioners' plea in petition for leave to appeal, was that the plaintiff making the
offer of special oath, had been authorised to make it only on behalf of his four sisters and
himself, but he had no authority to make any statement in Court or compromise the suit,
appeal etc. on behalf of remaining three brothers viz. petitioners herein, and hence special
oath taken by the defendant did not bind them---Supreme Court, however, found that the
Advocate in second appeal was jointly engaged by all the plaintiffs including the present
petitioners and that such Advocate was present in Court throughout the proceedings;
special oath was taken bef9re him and order of Court was also passed in his presence--No
plea was raised before High Court to the effect that the appeal of present petitioners could
not be dismissed in pursuance of the statement on oath by the defendant, in pursuance of
the offer of their brother as the latter did not represent them--Supreme Court declined to
exercise .its discretionary jurisdiction to grant leave to appeal to petitioners on the basis
of plea raised by them, before the Supreme Court.

Ch. Ghulam Hasan, Advocate Supreme Court and Rana Maqbool Ahmad Qadri,
Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th October, 1989.

ORDER

NASIM HASAN SHAH, J.---This is a petition for leave to appeal directed against the
judgment of a learned Single Judge of the Lahore High Court passed in R.SA.No.618 of
1980.

The relevant facts are that Akbar Ali predecessor-in-interest of the petitioners herein had
instituted a suit to challenge Mutation No.868 sanctioned on 23-5-1974 claiming that the
sale of the land in dispute allegedly made by him in favour of the respondents for a sum
of Rs.2 lacs was fictitious, based on fraud, misrepresentation and without consideration
and was, therefore, liable to be annulled.

This suit was dismissed by the learned Civil Judge, Toba Tek Singh by his judgment
dated, 17-10-1978 and the appeal filed against the said judgment and decree too was
dismissed on 26-5-1980 by the, judgment of the learned Additional District Judge,
Faisalabad; whereupon he moved the High Court by a second regular appeal.

During the proceedings of the second appeal Akbar Ali appellant filed a miscellaneous
application (C.M. No. 2493-D/87) under section 163 of the Qanun-e-Shahadat, 1984
wherein he challenged the respondents to deny the plaintiff-appellant's claim by taking a
special oath on the Holy Quran. In this connection, it was stated that if Muhammad
Akram, one of the defendants, who was a Haji (respondent No.3 herein) swore on the
Holy Quran and stated that the consideration for the sale viz. Rs.2 lacs had been paid to
the appellant, he would not object to the decrees passed in favour of the respondents
being maintained.

This challenge was not accepted by the respondents at that stage. But when the matter
later came up for hearing before the Court and the same offer was again made by the
appellants (the legal representatives of Akbar Ali by then deceased) it was accepted.

The offer was contained in the statement of Saif Ali son of Akbar Ali (one of the legal
representatives of the deceased-appellant) in the following terms:--

"Under tW6 above oath I make an offer to the respondents that if Haji Muhammad
Akram respondent No.3/defendant takes oath on the Holy Quran in the manner have
taken oath states that the defendants had made payment of the sum Rs.2,00,000 which
had been deposited by them in the Bank Account of the deceased appellant then this
appeal and the suit out of which this appeal has arisen may be dismissed and the decree
passed in favour of the respondents-defendants by the lower Court be kept intact and
maintained."

Haji Muhammad Akram, respondent No.3, as already stated, accepted, the offer and took
the special oath on the Holy Quran and stated as follows:--

"Under the above oath I state that the sum of Rs.2,00,000 was paid by me to the deceased
appellant Akbar Ali the father of Saif Ali who has just appeared and made a statement. In
view of my acceptance of the offer of Saif Ali and taking of oath in pursuance thereof and
making the statement on oath as called upon the appeal be now dismissed."

The learned Judge of the High Court thereupon dismissed the second appeal, directed
against the judgments and decrees dated 26-5-1980 and 17-10-1978 respectively passed
by the learned Additional District Judge, Faisalabad and the learned Civil Judge, Toba
Tek Singh with the result that the said judgments and decrees stood upheld.

In this petition for leave to appeal, Ch. Muhammad Hasan, learned Advocate for the
petitioners, has submitted that the special oath taken by Saif Ali did not bind the present
petitioners because Akbar Ali deceased was succeeded by 4 sons (three petitioners and
Saif Ali) and 4 daughters. Saif Ali, who made the offer, however, had been authorised to
make it only on behalf of the four daughters and himself but had no authority to make
any statement in Court or compromise the suit, appeal etc. on behalf of the remaining
three brothers (the petitioners herein) and hence the special oath on the Holy Quran taken
by Saif Ali did not bind them. This aspect, according to the learned counsel, was
overlooked by the learned Judge of the High Court.

However, we find that Mr. Muhammad Nasrullah Warraich Advocate represented not
only Saif Ali and his 4 sisters in the High Court but he was the Advocate of the three
petitioners before us. Mr. Warraich was present in Court throughout the proceedings, all
which took place before him and the order of the Court was also passed in his presence.
However, no plea was raised before the learned Judge in the High Court to the effect that
the appeal of the present petitioners could not be dismissed in pursuance of the statement
on oath made by Haji Muhammad Akram, respondent No.3 in pursuance of the offer of
their brother Saif Ali, as the latter did not represent them.

We also observe that even Akbar Ali (the father of the three petitioners) had in his
application under section 163 of Qanun-e-Shahadat, 1984 himself offered that if the
special oath on the Holy Quran was taken by Haji Muhammad Akram, respondent No. 3
and he affirmed that the consideration had been paid, his second appeal may be
dismissed. In this background it was natural to think that the offer being made by Saif Ali
son of Akbar Ali was being made on behalf of all his legal representatives. The very fact
that Mr. Nasrullah Warraich, Advocate, who was representing all the legal representatives
(including the three petitioners) did not assert before the learned Judge of the High Court
that the said three petitioners were not bound by the statement of Haji Muhammad Akram
made after taking the special oath on the Holy Quran shows that at that stage everybody
understood that the matter was to be decided on the basis of the special oath.

In these circumstances, we are not inclined to exercise our discretionary jurisdiction to

grant leave to appeal to the petitioners herein on the basis of the plea raised by them
before this Court.

The result is that this petition fails and is dismissed hereby.

A.A./M-1178/S Leave refused.