P L D 1997 Peshawar 154 (PLP)

8. This Court under its constitutional jurisdiction cannot be enquired into the factual controversy. The first contention of the petitioner involves the factual aspect and the petitioner can seek his redress in a competent Court of law. As tar as the second contention that his wife who was not on the roll of the Provincial Bar Council and not a practising Lawyer or an Advocate has been illegally dragged in the proceedings before the Tribunal (respondent No.4), is concerned, suffice it to say that the petitioner to his own words in para. 13 of the writ petition has admitted that the Tribunal opted to drop proceedings against the wife of the petitioner and assumed the jurisdiction qua the petitioner. The only question for determination of this Court is that whether the proceedings before the Tribunal, N.‑W.F.P. Bar Council (respondent No.4) against the petitioner are coram non judice and whether the present writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in the facts and circumstances of the case is maintainable?

9. We have heard the petitioner and respondent No.2 who were present in person as well as the learned Additional Advocate‑General for the remaining respondents at great length. 4 10 The Legal Practitioners and Bar Councils Act, 1973 was re‑enacted on 22nd February, 1973 to provide for certain incidental and ancillary matters (hereinafter to be called as the Act) The Act has defined an 'advocate' under section 2(a) as follows:‑‑ "Advocate' means an advocate entered in any roll under the provisions of this Act." The constitution of Provincial Bar Council is provided under section 3 (ii) which reads asunder:‑‑ "a Bar Council for each Province to be known as the Bar Council of the Province concerned." ‑‑ The functions of the Provincial Bar Council are laid down under section 9 of the Act. The relevant section 9(c) is as under:‑‑ "to entertain and determine cases of misconduct against advoctiies on its rolls and to order punishment in such cases. " The Provincial Bar Council shall constitute different Committees under section 10 of the Act to carry out its functions. It reads as under:‑‑ "(a) an executive committee consisting of a Chairman and not more than five other members, to be elected by the Council from amongst its member; (aa) a disciplinary committee consisting of not more than five members to be elected by the Council from amongst its members. " Section 20 of the Act is an indemnifying clause whereunder no suit. or other legal proceedings shall lie against any Bar Council or any committee, 'tribunal, member, officer or servant of the Bar Council for any act in good faith done or intended to be done in pursuance of the provisions of the Act or the Rules made thereunder. The Act under Chapter VII provides for Conduct of Advocates. Section 41 provides for punishment of advocates for misconduct which is re produced below:‑‑ "

41. Punishment of advocates for misconduct.‑‑(1) An Advocate may, in the manner hereinafter provided, be reprimanded, suspended or removed from practice 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 subsection (2), except where the complaint has been made by a Court, shall be accompanied by a tee of ten rupees (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 enquiry and giving the parties such opportunity of being heard as it may consider 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. (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." Section 42 of the Act provides for constitution of the .Tribunals. Subsection (2) of section 42 of the Act is as under:‑ "A Provincial Bar Council may constitute one or more Tribunals each consisting of two of its members elected by it for the, purpose and a Judge of the High Court nominated by the Chief Justice of that Court, who shall be the Chairman." Section 43 of the Act lays down the procedure in inquiries and under subsection (3) thereof the Chairman of the Tribunal may empower one of the members of the Tribunal to consider and decide preliminary issues and to record evidence. Any aggrieved person by an order of the Tribunal may prefer an appeal to the Pakistan Bar Council within a period of sixty days under section 47 of the Act. which shall be heard and decided by the Disciplinary Committee of the Pakistan Bar Council Under section 48 of the Act a right of appeal is provided to any aggrieved person by an order made by the Disciplinary Committee of the Pakistan Bar Council to the Supreme Court of Pakistan within sixty days from the date of communication of the order to him.

11. The petitioner is seeking a declaration from this Court to the effect that i the proceedings before the Disciplinary Committee, N.‑W.F.P. Bar Council and the Tribunal, N.‑W.F.P. Bar Council, respondents Nos.3 and 4 herein may be held as illegal, without lawful authority and of no legal effect. The decision of the Tribunal headed by a Honourable Judge of this Court can be challenged in appeal before the Pakistan Bar Council. The Constitutional jurisdiction of this Court can only be invoked when there is no other adequate remedy available to an aggrieved person. The right of appeal before the Pakistan Bar Council, is an adequate remedy by all means. It was held in Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810 that where the petitioners had a remedy to move the Board of Revenue for their redress, but they did not avail that opportunity, this was by itself held a sufficient ground for the dismissal of the writ petition. The petitioner can raise any factual ground or legal objection before the Tribunal and the Tribunal headed by a Honourable Judge of this Court would decide the same after giving due opportunity to him even to record evidence for determination of any question. Petitioner has raised the question of jurisdiction in para.1 of reply to the complaint submitted to the Disciplinary Committee, N.W.F.P. Bar Council as a preliminary objection in the following words:‑‑ "The complaint is however, liable to be summarily dismissed for want of jurisdiction." . The Chairman of the Tribunal under section 42(3) of the Act is competent to empower any member of the Tribunal to consider and decide the preliminary issue and to record evidence. We have been informed that evidence has been recorded by the Tribunal and full opportunity of cross‑examining the witness appeared against him was afforded to him. The present writ petition is not only not maintainable but is also premature.

12. Question of maintainability of the writ petition against the order or proceedings of another Judge of the same Court was thoroughly discussed in Malik Firoz Khan Noon v. The State PLD 1958 SC (Pak.) 333 and approved the dictum laid‑down in the case of Goonesinhu v. Kretser AIR 194 5 PC 83 wherein it was held that writ of certiorari, which is in the nature of a revisional order and JE can only be issued to an inferior Court, cannot be issued by a superior Court to bring up an order made by a Judge of that Court. The principle in the case of Malik Feroz Khan cited above is that when Judges of the High Court function in different capacity under different jurisdiction, they did not act as different Courts but exercise the powers of the same Court, and that distribution of those powers is not more than an internal arrangement among the Judges of the same Court. The Chairman of the Tribunal is nominated by the Chief Justice among the Judges of this Court as internal arrangements and other Judges of the same Court cannot sit to hear and determine an issue which can competently be decided by the Chairman of the Tribunal. This issue was also dealt with by the august Supreme Court in a recent case reported as Messrs Tank Steel and Re‑rolling Mills (Pvt.) Ltd., D.I.Khan and others v. Federation of Pakistan and others PLD 1996 SC 77 wherein the jurisdiction of the Banking Tribunal was upheld.

13. The petitioner as a last legs of his argument contended that as against the facts and circumstances of the aforesaid judgments the proceedings before the Tribunal have been challenged on the ground of coram non judice. We have not been impressed by this contention. We are of the firm view that irrespective of the issue involved the question of maintainability of the writ petition has been accused thoroughly and the dictum laid down in the cases cited above are equally applicable to the instant case. Apart from the above, in another judgment of this Court in Writ Petition No.658 of 1994, decided on 12‑6‑1997. I had the opportunity to write a judgment wherein in identical circumstances the order passed by a Banking Tribunal was challenged in a Constitutional petition on the ground of coram non judice. On applying the dictum laid down in the judgments referred to above, the writ petition was dismissed in limine. The petitioner herein having got the remedy by way of appeal to the Pakistan Bar Council and then to the Supreme Court of Pakistan would be at liberty to move under the Act if he feels aggrieved from the order passed by the Tribunal.

14. For the aforestated reasons, this petition being not maintainable is dismissed in limine alongwith C.M.A. No.828 of 1996 and the stay order of this Court dated 7‑7‑1996 passed thereon is recalled. A.A./2200/P Petition dismissed.