2002 PLP 1629 (MLD)

MUHAMMAD ALAM KHAN (MEMBER).‑‑‑On 9‑6‑2001 Asghar Ali SPP filed a complaint in the N.‑W.F.P. Bar Council, alleging therein that the respondent Arshad Mehmood Lodhi, Advocate while perusing a judicial file on 18‑5‑2001 in the Court of Mr. Aimon Zia, Additional Sessions Judge‑II, Peshawar in the case titled State v. Arshad Lodhi, tried to replace some statements/papers on the judicial file. It is alleged in the complaint that the respondent was caught red‑handed and the occurrence was seen by the Reader of the Court as well as the complainant and Naib Court present on duty. So, it was prayed that the respondent has committed a gross professional misconduct under the provisions of Legal Practitioners and Bar Councils Act, 1973 and stern legal action was prayed for.

2. The Disciplinary Committee of the N.‑W.F.P. Bar Council, Peshawar initiated the proceedings and after the issuance of the notice, the respondent did not attend the proceedings. So, he was placed ex parte on 14‑7‑2001 and the learned Member of the Disciplinary Committee after considering the ex parte evidence and data available on the record referred the matter to this Tribunal for final adjudication vide reference dated 11‑8‑2001.

3. On 27‑9‑2001, the respondent submitted an application for setting aside the ex parte proceedings on the ground that no copies of the complaint‑ and other documents had been annexed with the notice issued to him by the Secretary, N.‑W.F.P. Bar Council and that is why he could not submit his written statement and put his defence before the Committee.

4. The complainant has submitted the replication in which the allegations contained in the application were hotly contested. It was averred in the replication that the respondent had the knowledge of the proceedings and in spite of that he refrained to appear before the Disciplinary Committee. So, the order passed, even in his absence was a valid order which is not liable to be set aside.

5. We have heard the parties as well as the learned Dy. A.‑G, for the Government and have gone through the record of the case.

6. Perusal of the record would show that the learned members of the Disciplinary Committee had issued a notice for appearance of the respondent which notice is available on the record at page

19. But instead of putting an attendance, the respondent resorted to correspondence with the Secretary, N.‑W.F.P. Bar Council, which conduct of the respondent is strongly deprecated. The Secretary of the N.‑W.F.P. Bar Council is by virtue of office is the Legislature of the Tribunal and after the receipt of notice by the respondent, he should have appeared before the Members of the Disciplinary Committee to present his grievances.

7. As the respondent has been proceeded ex parte, which proceedings have not culminated into a final order, the law in this respect is clear on the subject that when a person has been placed ex parte, he can join the proceedings at any stage on the adjourned date. Reliance is placed on Azizullah v. Arshad Hussain and others (PLD 1975 Lahore 879). The case also requires decision on merits and the well- known maxim of law that nobody should be condemned unheard, which is so well‑entrenched in our legal system, ought to be saved from being violated, the ex parte proceedings are liable to be set aside and a chance has to be given to the respondent to present his defence before the Members of the Disciplinary Committee of the N.‑W.F.P. Bar Council, Peshawar.

8. The conduct of the respondent was also not above board. He also adopted a novel attitude before the learned Members of the Disciplinary Committee and resorted to delaying tactics, for which the complainant can be compensated in terms of money by imposing costs on the respondent‑Advocate. In view of the facts and circumstances of the case narrated above, we accept the application of the respondent dated 27‑9‑2001, set aside the ex parte proceedings on payment of costs of Rs.3,000 payable by the respondent to the complainant on the date when the parties appear before the Disciplinary Committee. The parties are directed to appear before the Disciplinary Committee on 18‑5‑2002 with the direction to the learned Members of the Disciplinary Committee of N.‑W. F. P. Bar Council to dispose of the main complaint as expeditiously as possible. Q.M.H./M.A.K./506/P Application allowed.