P L D 1999 Lahore 446 (PLP)

Through this Constitutional petition the petitioner has challenged order dated 30-1-1999 passed by the Chairman Appeal Committee, Punjab, Pakistan Bar Council, whereby he had suspended order dated 29-1-1999, passed by the Executive Committee of the Punjab Bar Council.

2. The petitioner's learned counsel submits that by virtue of order dated 29-1-1999 the petitioner was duly declared elected as President of Bar Association, Minchanabad after drawing of lots. The aggrieved person Zafar Iqbal, respondent No. l challenged the petitioner's election by way of an appeal before the Appeal Committee Pakistan Bar Council. The appeal was to be decided by the appeal Committee consisting of 3 to 5 members as provided under rule 3(iv) of the Pakistan Bar Council, Appeal Rules, 1986. The Chairmansitting singly took up the stay application filed by respondent No. l and passed the following order:- "30-1-1999. - Present: Mr. Zafar Iqbal Awaisi, Advocate appellant in person. The impugned order of the Executive Committee Punjab Bar Council dated 29-1-1999 has not been attached which according to the appellant has not been made available despite his best efforts. The application for dispensation duly supported by an affidavit is allowed. The appellant, however, shall append the certified copy of the impugned order within a week.

2. The appellant has been heard. The submissions made at the Bar and asserted in the memo. of appeal were verified by the affidavits of the appellant as well as two Advocates. The appeal be registered and set down for hearing for a date to be fixed by the office. In the mean while, the operation of the impugned order of the Executive Committee. Puniab Bar Council dated 29-1-1999 shall remain suspended subject to notice for an early date " The petitioner's learned counsel submits that the Chairman sitting singly was not competent to pass the impugned order which could have been passed only by the Appeal Committee. He points out that quorum of the Appeal Committee is half of the total number of members. He relies on the judgment reported as Syed Masroor Hassan v. Muhammad Tariq Chaudhry and others 1991 SCMR 668 to urge that an elected member cannot be restrained from performing his functions. On the other hand learned counsel for respondent No. l submits that initially the Chairman had passed the order because the other members were not available; subsequently the matter was taken up by the Appeal Committee and that the main appeal was likely to be decided in the near future.

3. There is considerable force in the arguments raised by the petitioner's learned counsel. Under the Pakistan Bar Council Appeal Rules, 1986 an appeal against an order or decision of a Provincial Bar Council or an Executive Committee of Provincial Bar Council has to be preferred before the Appeal Committee, constituted by the Pakistan Bar Council, under Rule 3 of the Rules. It has to consist of not less than three and not more than 5 members. The M Pakistan Bar Council has to elect a Chairman from amongst the members of the Appeal Committee. Under rule 3(iv) of the Rules the quorum for the meeting of the Committee is one half of the total number of members of the Committee. For purposes of admission and grant of interim relief the appeal has to be laid before the Appeal Committee and an order or decision of the Committee has to be taken according to the majority view. The relevant Rule 5 is reproduced below:-- "

5. Functions of the Appeal Committee.--(i) The appeal shall normally be laid before the Committee within (fifteen) days of receipt of an Appeal for admission of the appeal and grant of interim relief if prayedfor. (ii) For the admission of appeal and grant of interim relief it shall not be necessary to call a meeting of the Committee and it will be sufficient if the appeal is circulated amongst the Members of the Committee. Every order or decision of the Committee shall be taken by the majority. (iii) The Appeal Committee shall hear the appeal, examine the record of the case, and record such evidence as it may deem necessary after providing opportunity of hearing to the parties. The Appeal Committee shall decide the appeal within two months and its decision shall be deemed to be the decision of the Pakistan Bar Conncil_" A bare reading of the above quoted rule makes it clear that the appeal, for purposes of admission or grant of interim relief, had to be dealt with by the Committee consisting of 3 to 5 members and that every order or decision of the Committee had to be taken in accordance with the view of the majority of the members. This express provision leaves no room whatsoever for the Chairman of the Committee sitting singly to take any decision or pass any order either for admission of the appeal or grant of interim relief. The mere fact that other members of the Committee were not readily available did not authorise the Chairman to violate the rules and allocate to himself the functions of the Appeal Committee. Sub-rule (ii) of Rule 5 provides that for admission of appeal and grant of interim relief a formal meeting of the Committee may not necessarily be held and that the requisite order be obtained through circulation of the appeal amongst the members of the Committee. When law provides a thing to be done in a particular manner then it ought to be don in that, manner and all other modes of doing it stand excluded.

4. For the foregoing reasons the petition is accepted and the impugned order dated 30-1-1999 (Annexure 'F') passed by the Chairman, Appeal Committee/respondent No.5 is declared to be without lawful authority and of no legal effect. Resultantly order dated 29-1-1995. passed by the Executive Committee, Punjab Bar council, Lahore declaring the present petitioner to be successful stands restored and will hold the field subject to an order or decision of the Appeal Committee. H. B. T./M-1159/L Petition accepted